P L D 1957 Dacca 480 (PLP)

CHAKRABORTI, J.‑

In this case, a Rule was issued upon the District Magistrate of Dacca to show cause why the order complained of should not be set aside. The relevant facts are: The petitioner along with another stood surety for Rs. 5,000 each for the appearance of one Askari. The bail bond was executed in March 1955. The accused Askari thereafter attended the Court from day to day. Askari has two wives and children who live at Taherbegh Lane at Dacca. He had also some business at Narayanganj where he used to go daily. On the 3rd of June 1955, the bailors learnt from Farida Banu, wife of the accused, that one Bhanbor, a Pahlwan of Malitola Lane, Dacca, came to visit the residence of the accused and took him away and that the said accused had about Rs. 800 in his custody and he could not be traced for four or five days and she suspected that her husband had been murdered. An ejahar was lodged with Sutrapur Police on 3rd June 1955, to the same effect and the petitioner moved the Magistrate on 16th June 1955, the date fixed for the appearance of the accused, for taking evidence of the above fact and for discharging the bailors from their liability. The petitioner alleged that the sudden disappearance of the accused was not due to any negligence on his part and he was not at all responsible for it. The Magistrate referred the matter to the Sutrapur Police for report and the police submitted a report on 16th July 1955, in which they said that the accused was missing. The police also referred to the ejahar lodged at the Thana by the wife of the accused and reported that no direct evidence was available to prove that the accused, had been murdered. The police also mentioned in the report that they examined the sureties and some witnesses produced by them and they also suspected. the accused to. have been killed for the money. The S. D. O., however, id not call for the police papers, and did not hold any enquiry‑ into the statements made by the surety but was of opinion that the plea raised by the petitioner was only an excuse to escape from the liability and he forfeited the bail bond and issued distress warrant against the sureties by his order dated 2nd August 1955. There was an appeal against the order of the Magistrate and the learned Additional District Magistrate who heard the appeal by his order dated `17th January 1956, in Criminal Appeal No. 136 of 1955, held that the order of the S. D. O., was not in compliance with section 514, Criminal P. C., and he accordingly set aside the order dated 2nd August 1955, and remanded the case to the S. D. O., Sadar (South), for drawing up fresh proceedings under section 514, Criminal P. C., and for disposal of the case according to law. After receipt of the record, the S. D. O., directed by his order dated 25th April 1956, that the proceedings might be drawn up against the sureties under section 514, Criminal P. C., and adjourned the case to 17th May 1956. Ultimately by his order dated 9th August 1956, the S. D. O., forfeited the entire amount of the bail bonds amounting to Rs. 5,000 and directed the sureties to pay Rs. 5,000 and he also issued distress warrant for the same. There was an appeal before the Additional District Magistrate who by his order dated 29th November 1956, upheld the order of forfeiture passed by the S. D. O., but at the same time reduced the amount to Rs. 1,

000. Thereafter the petitioner moved this Court in the exercise of its criminal revisional jurisdiction and obtained the present Rule. Mr. Huda appearing on behalf of the petitioner has contended before this Court that the order of forfeiture by the Magistrate is not in compliance with the provisions of section 514, Criminal P. C., and should be set aside. He next contended before me that the Magistrate should have held an enquiry into the cause shown by the petitioner and he could not forfeit the bond without taking evidence in the presence of the petitioner and, in the circumstances stated, the bond has been forfeited by the Magistrate without recording the grounds of such proof, and, in that view, the order of the Magistrate was entirely bad. Mr. Huda has referred to an unreported Criminal Revision Case No. 643 of 1955 (Wall Muhammad and another v. The Crown), in support of his contention. Mr. B. N. Chowdhury appearing on behalf of the State has again submitted before this Court that the first order of the S. D. O., dated 2nd August 1955, was undoubtedly bad but that order has been set aside by the appellate Court and the proceedings drawn up against the petitioners were strictly in conformity with the provisions of section 514, Criminal P. C., and, as such there is no sufficient ground why the order dated 25th April 1956, should be set aside. He has also urged before this Court that it is only necessary for the Magistrate to come to a finding that the bond had been foreited and the Court will only record the grounds of such proof and there is nothing in section 514 to justify the petitioners contention that there should be an enquiry held by the Magistrate regarding the sufficiency of that proof. He has referred to the case of Gurupada Mudaliar surety‑petitioner v. Government of Mysore complainant respondent (A I R 1952 Mysore 102.) and the case of Rajbansi Bhagat and another v. Emperor (A I R 1929 Pat. 658) in support of his contention. Section 514, Criminal P. C., provides for two steps to be taken by the Magistrate. Firstly, it must be proved to the satisfaction of the Court that the bond has been forfeited whereupon the Court is to record the grounds of such proof. Secondly, the Court on being satisfied as afore said may call upon the person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. The order of the .S. D. O., dated 2nd August 1955, is: "Seen report of the police. It appears from the police report that it is an excuse sought by the surety to escape from the liability of the bail bond which is forfeited. Issue D/W against the surety." This order is undoubtedly bad as conceded by the learned Advocate for the State. There is nothing in the police report that the plea raised by the surety was only an excuse to escape from his liability. This order was, however, set aside by the Additional District Magistrate in appeal on 17th January 1956, and he directed that a fresh proceeding should be drawn up according to law. On 26th April 1956, the S. D. O., recorded an order: "Seen order of the learned A. D. M. Draw up fresh proceeding against the sureties under section 514, Criminal P. C. To 17th May 1956." In the order sheet of the Magistrate it was not stated that the bond has been forfeited and he did not record the grounds of such proof and did not call upon the petitioner to pay the penalty or to show cause why it should not be paid. But the proceeding drawn up under this order is infirm and this is also not contested by the learned Advocate for the petitioner. The S. D. O. was directed by the appellate Court to draw up proceedings under section 514 of the Code of Criminal Procedure and proceeding was drawn up according to law. There is, therefore, no substance in the first contention of the learned Advocate for the petitioner. But there is much substance in the second contention raised by the learned Advocate for the petitioner. The accused attended the Court on all the dates fixed for appearance and it is not also disputed that he had business at Narayanganj where he used to go daily. On 3rd June 1955, the petitioner got an information from the wife of the accused that the accused had been decoyed by some goonda and he had about 800 rupees in his possession and that he could not be traced for four or five days and she suspected that her husband hand been murdered. An information was lodged with the Sutrapur Police on the very same day. This next date for appearance of the accused was 16th June 1955, and on that date the petitioner brought to the notice of the Magistrate the above facts and he prayed that he might be discharged from the liabilities under the bail bond for the reason that the sudden disappearance of the accused was not due to any negligence on his part and he was not responsible for what had happened. The matter was referred to the Sutrapur Police and the police also submitted a report which substantially corroborated the information lodged by the wife of the accused at the Thana. The Magistrate, however, did not call for the police papers and straightway came to the conclusion that it was simply an excuse sought by the surety to escape from his liability. After the remand and the cause shown by the petitioner, the S. D. O., came to the finding, on 9th August 1956, that he did not believe the plea of the sureties and that the cause shown was not satisfactory, and accordingly he forfeited the entire amount of bail bonds amounting to Rs. 5,000 and directed the issue of the distress warrant against the petitioner. On appeal, the amount was reduced only to Rs. 1,

000. Now exactly on the same facts, this Court in the unreported criminal revision Case No. 643 of 1955 held: "It appears from the aforesaid petition showing cause filed on 16th June 1955) that the petitioners submitted that they learnt from Farida Bano, a wife of the accused (Astari), that one Bhambora Pahalwan of Malitola Lane, Dacca came to her residence and took her husband (the said accused) who had seven or eight hundred rupees in his possession and that she apprehended that he (the said accused) might have been killed by him. It was further stated in the petition that it was reliably learnt that the said lady had lodged ejahar with Sutrapur Police in the morning of 3rd June 1955, regarding the said matters and that on the basis thereof the police searched for the said Pahalwan who was said to have disappeared and that it was apprehended that he might have committed the murder of the accused for the money or some other reason. A prayer was made in the petition for taking evidence regard ing the facts contained in the petition with a further prayer that if the facts were found true the petitioners might be discharged from their liability." The learned Magistrate by his order dated 16th June 1955, as it appears, had disposed of the matter on supposed contra dictions between the contents of the aforesaid two petitions. Further he seems to have been impressed by the fact that the sureties never informed him regarding the facts contained in their petition dated 16th June 1955, before the order asking them to show cause was passed on 3rd June 1955. As regards the subject‑matter on which an enquiry was sought by the petitioners, the only point referred in the order of the learned Magistrate is that the body of the accused was not admittedly traceable. In the circumstances there can be no doubt that an enquiry sought for by the petitioners, in response to the notice issued by the learned Magistrate asking them to show cause, was never made, and police records, if any, were never called for. To my mind, the recording of `the grounds' of `proof' as required by section 514, in the particular circum stances of the case, could only be made after the said enquiry. That criminal revision case also arose out of the forfeiture of the bail bond in another case against the same accused. Exactly the same cause was shown before the Court by the present petitioner No.2 in that case. The principle laid down in that case clearly governs the present case. I respectfully agree with the view taken by Ismail, J., in that particular case. Mr. Chowdhury placed before me a case reported in A I R 1952 Mysore 102 which does not help him at all. In that particular case no cause was shown by the surety at all. The surety was present before the Magistrate but he was unable to explain as to why the accused was absent. At page 103, His Lordship Venkata Ramaiya, J., observed "The surety is of course entitled to an opportunity to offer explanation for non‑appearance and show that the default was not wanton or wilful and such as may be excused or condoned." His Lordship referred to the decision in the case of Zulmi Kahar v. Emperor (A I R 1929 Pat. 643), where also Fazl Ali, J., held: "Now, it has been held that it is the duty of the Magistrate to record evidence had come to a definite finding that the bond has been forfeited before a notice is issued upon the bailor to show cause why the penalty should not be realized from him: vide In re: Hariram Birbhan (11 B H C 170) and In re: Mohesh Chandra Ray (10 C, L R 571). In the case of Krishna Narain Singh v. Emperor (A I R 1922 Pat. 242), Adami, J., distinctly pointed out (1) that under section 514, 'Criminal B P. C., the Magistrate is bound to have before him sufficient proof that a good reason exists for making the order, and the ground of such proof must be recorded before issuing notice upon the person, who is subject to a bond, to show cause why he should not forfeit it: and (2) where there has been a failure to carry out the express provisions of law the question of prejudice becomes immaterial. Now, in this case it is clear from the order‑sheet that although the accused was absent on 6th August 1928, his mother did appear in Court and filed a petition stating that her son had been laid up with fever. The learned Magistrate, however, without properly investigating the matter, assumed that the accused had deliberately absented himself from the Court and issued a notice to the petitioner to show cause why the bail bond should not be forfeited and the penalty realized from him." The mother of the accused appeared in Court on the date fixed for the appearance of the accused (6th of August 1928), and filed a petition stating that her son had been laid up with fever, and His Lordship held that in the circumstances the proper course for the Magistrate should have been to come to a finding based on some evidence before he forfeited the bond. There is, of course, a contrary decision in the case of Rajbansi Bhagat and another v. Emperor, where Macpherson, J., held: "There is a palpable distinction between bonds which are not and those which are for appearance before a Court. Proof other than is directly before the Court in its own record is required in the former and not in the latter. Where the Court had before it the order for bail, the bail bond and the fact that the petitioners did not produce the accused, the provisions of section 514 (1) were substantially complied with and High Court would not be justified in interfering in revision where there was no possible prejudice on the ground that the proceedings of the Sessions Judge under section 514 were without jurisdiction, as he had before him neither any proof that the bail bond had been forfeited nor did he record the grounds of such proof before he called upon the petitioners to show cause why the penalty of the bond should not be paid." The decision of our Court is in line with the view taken by Fazl Ali, J., in the case referred to in A I R 1929 Pat.

643. The Rule is accordingly made absolute and the order of the Magistrate calling upon the petitioner to make payment of the sum of Rs. 1,000 as penalty is set aside and he is directed to make enquiry into the matter as contained in the petition dated 16th June 1955, and thereafter proceed with the matter in accordance with law. Z. A. S. Rule made absolute.