P L D 1962 Dacca 447 (PLP)

This revision is directed against the judgment and order of Mr. A. H. Choudhury Ex‑officio Additional Sessions. Judge (Special Judge), Dacca, dated 14th March, 1960 rejecting the petition of the petitioners as against the judgment and order of Mr. E. A. Hashmi, Magistrate, First Class, Narayanganj, dated the 31st July, 1959 directing issue of fresh digress warrant against the lawyer‑surety for Rs. 500 and directing issue of urgent takid through S. P. and rejecting the petition filed by the surety for exemption.

2. The petition discloses that one Karam Ali was accused of an offence under section 380 of the Pakistan Penal Code and on 31st October, 1957 was granted bail. The bail order runs as follows: "Bail moved for Karam Ali, let him find bail of Rs. 500 with one local and one lawyer‑surety of the like amount."

3. The petitioner as a lawyer and one Abdul Wahed a local person furnished a joint bond for a total sum of Rs. 500 as per the aforesaid order for bail before Mr. Ahamadullah, Magistrate, First Class, Narayanganj on 31st October, 1957.

4. Thereafter, on 7th January, 1958 the accused Karam Ali was absent. The learned Magistrate being not satisfied with the cause shown for the absence of the accused by the local surety directed warrant of arrest to issue against the accused and further recorded an order forfeiting the bail bond money of the local surety and at once directed a distress warrant to issue against the local surety for realisation of the bail amount and fixed 4th February, 1958 as the date. On 4th February, 1958 the learned Magistrate recorded as under: "S. R. of D. W. received back with the report that the surety was not found at the address given. Ask lawyer‑surety to show cause as so why his bail bond will of be forfeited. To 25‑3‑58" Thereafter the lawyer‑surety, that is, the petitioner showed cause inter alia giving the then address of the local surety and also stated why his bail bond should not be forfeited.

5. Upon cause being shown by the petitioner the learned Magistrate ordered as follows: "Seen the petn. of the lawyer surety. The bail bond is forfeited. Issue D. W. against Abdul Wahed in the Dacca address. To 25.4".

6. It is alleged in the petition that the order passed by the learned Magistrate on 25th March, 1958 and the subsequent order passed by the learned Magistrate till 23rd March, 1959 clearly showed that the learned Magistrate accepted the cause shown by the petitioner though he did not do so in so many words and the order stating that the bail bond is forfeited relates to the bail bond of the accused which was not previously forfeited and did not relate to the surety bond of the petitioner.

7. Thereafter on 18th May, 1959 Mr. E. A. Hashmi the succeeding Magistrate all on a sudden issued all at once warrant of arrest against the surety of Abdul Wahed directing distress warrant against the petitioner.

8. Thereafter on 31st July, 1959 the learned Magistrate recorded an order for issue of fresh distress warrant against the lawyer‑surety for Rs. 500.

9. Thereafter the petitioner on 25th September, 1959 filed another petition before the learned Magistrate Mr. E. A. Hashmi for exemption from payment which was rejected by the learned Magistrate.

10. Against the said order of the learned Magistrate there was an appeal before the Additional District Magistrate who dismissed the same. The petitioner then moved the Additional Sessions Judge in revision for reference to the High Court without success.

11. Mr. Sudhangshu Kumar Bose, the learned Advocate appearing for the petitioner has urged ground No. 4 of the petition which is as follows: ‑ "For that even assuming that the learned trial Magistrate Mr. Ahmedulla forfeited the bond of the petitioner the order passed by Mr. Hashmi, the learned succeeding Magistrate, directing D. W. to issue all at once for realisation of the bond amount from the petitioner without asking him (petitioner) to show cause why the amount should not be paid as required by law has been bad in law and is liable to be set aside." Mr. Bose has in placing the ground tried to challenge the very forfeiture of the learned Magistrate on the basis of the words "even assuming" in the present ground.

12. In view or the fact that Mr. Bose was not granted Rule on ground No. 3 Mr. Bose has no locus standi to challenge the every forefeiture order.

13. So the only question is whether issue of distress warrant all at once for realisation of the bail bond amount (without) asking the petitioner to show cause why the amount should not be paid, could be upheld.

14. Mr. Bose has relied upon the decision in Rustam Ali Mia v. The State (P L D 1957 Dacca 467) in which it was held inter alia as follows "Section 514 of the Code of Criminal Procedure provides that (1) it must be proved to the satisfaction of the Court that the bond has been forfeited: (2) it may then either call upon the person bound by the said bond to pay the penalty or to show cause why it should not be paid. Declaration of forfeiture of bond must be provided upon cogent grounds establishing to the satisfaction of the Court that a forfeiture has taken place. The Code further insists that not only such grounds must exist but that the Court should also record such grounds. Again, if the notice to show cause had been issued, the Court must further be satisfied that the cause shown is not sufficient before it can proceed to take steps to recover it. A Court may be satisfied that a forfeiture has been incurred and that the person bound by the bond should be called upon to pay or to show cause, on the basis of evidence taken in the absence of such person, but that does not show that the final order making him liable can be made without taking any evidence in the presence or giving him any opportunity of cross‑examining the witness on whose evidence the forfeiture is held to be established. It should be grossly unjust if persons are penalised without) being given an opportunity to show cause that they were prevented from complying with the bond for some cause beyond their control".

15. Mr. Bose's contention is that the petitioner was not given any opportunity to show cause as to why he should not pay.

16. It appears from the decision cited that three stages are contemplated for a proceeding under section 514 of the Code of Criminal Procedure. Firstly, there should be a declaration of forfeiture; secondly, the order for payment or to show cause ; and thirdly, steps to be taken for the recovery of the amount.

17. So far as the declaration of forfeiture goes, the validity of that is not the subject‑matter before us for the reasons stated already.

18. The only question is that of the validity of the distress warrant without giving an opportunity to show cause.

19. Mr. Syed Mohsen Ali, learned Advocate appearing for the State has argued that the facts in the case cited were very much different; that the accused himself having kept absent on the strength of the medical certificate supporting "inspired illness", the Special Judge, Dacca, adjourned the case from time to time and proceeded rather harshly against the accused refusing an application for remission of the penalty earlier directed to be realised from the accused, although the accused was acquitted of the‑substantive offence under section 409 of the Pakistan Penal Code.

20. The facts of that case indicate that two objectionable features combined, namely; that not only, no opportunity was given to explain against the forfeiture itself but also on the subsequent occasion when steps began to be taken for realisation of the penalty, proper opportunity was not granted to the accused.

21. In the present case the forfeiture order was passed on 25th March, 1958 and the bail bond was taken in 1957. The lawyer‑surety, namely, the petitioner knew that the bail bond against the local surety could not be executed and the succeeding Magistrate finding that there was no chance of realising from the local surety, issued distress against the lawyer‑surety on 18th May, 1959.

22. The question is whether those circumstances justify the subsequent order of issue of distress warrant straightway without fulfilling the requirements of section 514 (2) of the Code of Criminal Procedure which are as follows: "If sufficient cause is not shown and the penalty is not paid the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead." It appears that in the present case the dotted steps indicated by the subsection (2) has not been followed.

23. Mr. Syed Mohsen Ali has argued that this is at best an irregularity only and as such is curable by section 537 of the Code of Criminal Procedure.

24. The section states "If sufficient cause is not shown and the penalty is not paid". It is clear, that no opportunity was given to show sufficient cause. It is to be noted that there is an "and" between `cause not being shown' and "penalty not being paid". It is only when both is not done, that distress warrant may issue.

25. It is true that there are certain circumstances that may alienate the sympathy of the Court against the petitioner as those found by the learned Judge, that is, loss of records and alternation of "each into both" in the bail bond. But since the liability for this cannot be fixed with certainty against the petitioner himself. I do not see any justification for the departure from the dotted steps of section 514 of the Code.

26. Further it will not do to forget that these lawyer sureties also fulfil certain genuine requirements of our social system. To be too hard to them would mean that an accused may be reduced to the position of not getting a surety in very hard and genuine cases. We cannot afford to be too hard or, too liberal to them and we should take a middle course.

27. It seems also from the order sheet of the learned Magistrate that the anger and wrath primarily generated by the conduct of the local surety leading to the non‑execution of the warrant of arrest and distress warrant against him got diverted rather unduly and came to rest with full force on the shoulders of the lawyer‑surety, that is the petitioner.

28. Distress warrant had been hanging over and head of the local sourety for sometime without execution and even the execution of the warrant of arrest against him was being unduly delayed.

29. It appears also that on 25th September, 1959, the petitioner made a petition for exemption and this petition was rejected without any reason being given or even without any indication of the contents of the petition.

30. Under those circumstances there is substance in this aspect of ground No.

4. In the result the subsequent order issuing distress warrant against the petitioner cannot be upheld in the way it has been done.

31. Mr. Bose then urged ground No. 5 of the petition which is: ‑ "For that the order directing D. W., to issue for realisation of the entire amount of Rs. 500 of the aforesaid joint bond from the petitioner alone has been bad in law and is liable to be set aside." The learned Advocates of both sides have referred to a number of decisions on the point as to whether the liability of the petitioner under the surety would be for the whole amount of Rs. 500 or it would be half and half between the two.

32. In the light of my decision on the first ground as above, this point does not call for decision.

33. The order of distress warrant as against the petitioner, is, therefore, set aside and the case is remanded to the Court of the Magistrate for disposal in accordance with law in the light of the observations made.

34. It is directed that there should be show‑cause notice upon the petitioner calling upon him why the penalty under the bail bond should not be paid by him.

35. Opportunity should be given to him to show sufficient cause. On failure to show sufficient cause, the steps of distress warrant is to be resorted to. The Rule is made absolute in those terms. K. B. A. Rule made absolute.