P L D 1957 Dacca 467 (PLP)

RAHMAN, J.‑

This appeal is directed against an order passed by the Ex‑Officio Special Judge of Noakhali on the 26th of September 1956, in a proceeding under section 514 of the Code of Criminal Procedure whereby an application for remission of the penalty, earlier directed to be realized from the appel lant, was refused and the payment directed to be enforced. The circumstances in which the order complained against came to be made were as follows: ‑The appellant, it appears, was charged with criminal misappropriation under section 409 of the P. P. C., and was, put upon his trial for the said offence. He was enlarged on bail during the pendency of the said proceedings. The aforesaid bail was granted on the 20th of December 1955, and he was directed to be enlarged on bail of Rs.:00, with one surety of like amount. By the bail bond the appellant under‑took to appear before the Special Judge on each and every one of the dates fixed for the hearing of the said case until the case was finally disposed of. The case was adjourned from time to time until the 7th of May 1956, when it was set down for trial on the 13th of June 1956, and for this date the summonses for witnesses were also issued. On the 13th of June 1956, however the appel lant was not present in Court and a petition was filed by his pleader through the nephew of the appellant for adjourn ment on the ground of his illness. A medical certificate was also filed in support of the said petition. The aforesaid petition however, was not a verified petition. As against this, the complainant, one Salamatullah, put in an affidavit controverting that the appellant was ill and stating that he had seen him moving about and in good health the previous evening at Toyab Bazar. The medical certificate was to the effect that the accused was suffering from acute diarrhoea and was advised rest for a few days. The learned Special Judge took the view that this was an attempt to evade the trial and the medical certificate had been procured to support a got‑up story. Hence, he rejected the petition for adjournment and took up the case. Since the appellant was not present in Court, he found that there had been a violation of the terms of the personal recognizance bond resulting in the forfeiture thereof and, accordingly, he called upon the appellant and his surety to show cause within seven days why the amount of Rs, 500 already forfeited should not be realized from them. On that date a warrant of arrest was also issued for the production of the appellant. On the next day, i.e., on the 14th of June 1956, the appellant was present in Court. The learned Judge in his order records that the appellant is all right. The trial was then taken up and the hearing thereof concluded on the 21st of June 1956. On the said 21st of June 1956, the appellant also filed a petition showing cause as directed on the 13th of June 1956. On this petition, it does not appear from the order‑sheet, that any evidence of any kind whatsoever was taken or that the petitioner was given any opportunity to cross‑examine the complainant, relying upon whose evidence the learned Judge had on the 13th of June 1956, held that the appellant had deliberately violated the terms of his personal recognizance bond. Only the Pleader of the appellant was heard and passing of orders was postponed till the 29th of June 1956. On the 29th of June 1956, again no further evidence was taken ; but the learned Judge recorded in his order that since on the 14th of June 1956, he found the appellant perfectly all right, the medical certificate produced was to support "an inspired illness" although the appellant was not really ill. Hence, the absence was in no way justified and the petition was accordingly rejected and directions for realization of the penalty of the appellant were given. It may be mentioned here that in the petition the appellant stated he had started from his house by boat on the 12th of June 1956, but on the way had been attacked with a severe type of diarrhoea. So he had gone to the doctor who bad given the medical certificate at Toyab Bazar and on his advice be bad remained at the house of friends close to the hospital taking medicine and rest. The aforesaid friends were respectable gentlemen who would support the fact that he was really attacked with diarrhoea and unable to come to Court. On the 14th of June 1956, he was brought to Court by his nephew whom he had sent on the 13th with the medical certificate to obtain an adjournment. In this petition the appellant also challenged the correctness of the statement of the complainant and prayed that evidence may be taken. On this date judgment was also delivered in the case under section 409 of the P. P. C. and the appellant was acquitted of the said charge. In pursuance of the above order of the 29th of June 1956, a Miscellaneous Case being Criminal Miscellaneous Case No. 10 of 1956 was registered on the 28th of August, 1956, for the realization of the forfeited amount of Rs. 500 and it is in these proceedings that the order complained against was made. When this appeal was admitted it was felt that an appeal was possibly not maintainable and hence, the order admitting the appeal expressly made it subject to the risk taken by the appellant on the preliminary point as to whether an appeal or a revision lies in this case. They preliminary point was to be decided at the time of the hearing of the appeal. The first question, therefore, that we have to consider is whether this appeal is maintainable. The learned Advocate appearing on behalf of the appellant has for this purpose relied on subsection (1) of section 9 of the Pakistan Criminal Law Amendment Act, 1948. The said subsection reads as follows :‑ "An appeal from the judgment of a Special Judge shall lie to the highest Court, having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge, and the same Court shall also have powers of revision". It is urged that the order complained against in the present case is a judgment passed by a Special Judge and, therefore, appeal-able under the provisions of the said section. From what we have indicated above, it would appear that the adjudication, if any, as to whether the bond had been forfeited and whether the penalty should be realized, had been made on the 13th of June 1956, and the 29th of June 1956, respectively. The proceedings started thereafter were merely in pursuance of, or rather in execution of the aforesaid order directing the realization of the penalty on the 29th of June 1956, with this added difference that on this occasion again the appellant also prayed for the remission of the penalty, as also for an opportunity to examine his witnesses in support of his alleged illness. Strictly speaking, therefore, the order now complained against did not make any final adjud ication as to the rights of the appellant in the matter. Bui apart from this, we are of the view that all that subsection (1) of section 9 of the Criminal Law Amendment Act, 1946, does is to give a right of appeal from a judgment of a Special Judge as well as vest the superior Court with powers of revision. It is manifest from this that the makers of this A legislation did not intend that any and every order made by a Special Judge must be treated as a judgment and be appeal -able, for in that event the provision for revision would have been redundant. No words in a statute are, however, surplus age and, therefore, if a meaning is to be given to the last clause of this subsection, it appears to us that the only meaning possible is that where an appeal would ordinarily lie under the Criminal P. C. an appeal may be taken from a judgment of a Special Judge but where an appeal would not lie, then the power of revision may be invoked as under the Criminal P. C. In other words, this section gave the right of appeal and revision subject to and upon the same conditions and circumstances in which an appeal or a revision would have lain under the Criminal P. C. Chapter XXXI of the Code of Criminal Procedure is the Chapter which deals with appeal in criminal matters and section 404 of the said Code clearly provides that no appeal shall lie from any judgment or order of a criminal Court except as provided for any Code itself or by any other law for the time being in force. The Criminal Law Amendment Act is such other law and, therefore, by reason of the provisions of subsection (1) of section 9 of the Criminal Law Amendment Act the appeal may be had in accordance with the provisions of Chapter XXXI of the Criminal P. C. For this view that we have taken we find support from a decision of their Lordships of the Federal Court in the case of S. M. K. Alvi v. The Crown (P L D 1953 F C 189), where their Lordships when considering the question as to whether an appeal against acquittal would lie from a judgment of a Special Judge observed that :‑ "It is clear, therefore, that the provisions of Chapter XXXI of the Criminal P. C. relating to appeals are fully applicable to the judgment delivered by the Special Judge under the provisions of the Pakistan Criminal Law Amendment Act. The provisions of Chapter XXXI authorise the Provincial Government to prefer an appeal against an order of acquittal. Sections 5 and 417 of the Criminal P. C., read with section 9 of the Criminal Law Amendment Act, 1948, there fore provided the machinery for the filing of the appeal by the Advocate‑General, Punjab, in the High Court under the orders of the Provincial Government. Section 404 of the Criminal P. C., lays down that no appeal shall lie from any judgment or order of a "Criminal Court" except as provided by that Code or by any other law for the time being in force. The expression "Criminal Court" would, in our opinion, included a Court such as that of the Special Judge. This provision can also be availed of by the Crown in support of the appeal preferred in the present case, and we accordingly find that the appeal was entirely competent." It is clear that under the Code of Criminal Procedure no appeal other than that expressly provided for in section 515 of the said Code is maintainable against an order made under section 514 and, therefore, the order complained against cannot, in our opinion, be an appeal-able order either under the Criminal Procedure Code or under section 9 of the Pakistan Criminal Law Amendment Act, 1948. In this view of the matter, the question that next arises is as to whether we should on that account simply dismiss this appeal or treat it as if it was an application in revision. The learned Advocate appearing for the appellant has invited us to treat this as an application in revision in view of that fact that this precise question does not appear to have been decided in any case so far. It is contended that we have every jurisdiction to do so and reliance is placed in support of this practice of treating an appeal as a revision on finding that the appeal is not maintainable on a decision in the case of Rangai and others v. The Empress (I L R 9 Ca1. 513), where their Lordships Mitter and Field, JJ., adopted a similar procedure after coming to the conclusion that the appeal filed was not competent and, in that, treated the Memorandum of appeal as an application in revision and set aside the conviction of the appellant in that case, there can be no doubt that our powers under section 439 of the Code of Criminal Procedure are unfettered and we have the power to invoke our revisional jurisdiction, no matter how the question is brought to our notice, for, the words "which otherwise comes to its know ledge" in subsection (1) of section 439 are wide enough to enable us to treat this appeal as an application in revision. No prejudice can be caused by adopting such a procedure to the other side, for notice of this matter has already been served on the State and the State is also represented before us. In these circumstances, we propose to treat this as an application in revision and to deal with it accordingly. 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) that the Court shall record the grounds of such proof, and (3) that 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. Then if the cause shown is not sufficient and the penalty is not paid, the Court may proceed to recover the penalty by issuing warrant for the attachment, etc. If by that method again the penalty is not realized or cannot be realized, then in the ultimate resort the Court may issue a warrant for imprisonment of the defaulting person in the civil jail for a term not exceeding 6 months. The section also gives the Court a discretion in a proper case to remit any portion of the penalty. It would thus seem that three stages are contemplated for a proceeding under this section firstly, a declaration of forfeiture, secondly, an order for payment or to show cause or thirdly, steps to be taken for the recovery of the amount. The declaration of forfeiture again must be proved 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 D 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. The words "whenever it is proved to the satisfaction of the. Court" have come up for interpretation in quite a few cases, and it appears that it has consistently been held that such satisfaction must be grounded upon some cogent evidence. E 1n the case of Thakur Kishan Narayan Singh and another v. Emperor (A I R 1922 Pat. 242), Adami, J., pointed out that:‑ "Section 514 lays down that it must be proved to the satisfaction of the Court that the bond has been forfeited and that the Court shall record the grounds of such proof, and it is after such grounds have been recorded that the person bound by the bond may be called on to show cause why the amount should not be paid." His Lordship further observed, relying upon an earlier Bombay case, that such proof should have been afforded by evidence recorded on oath. Although in this case His Lordship was dealing with a bond taken under section 107 of the Code of Criminal Procedure for maintaining good behavior the same principle, it appears, is also applicable in the case of a bail bond or a personal recognizance bond. Indeed, it was so laid down in the case of Zulmi Kahar v. Emperor (A I R 1929 Pat. 643), where Fazl Ali, J., after reviewing various decisions came to the following con clusion:‑ "In the light of the law as laid down in the cases to which I am referred, the proper course for the Magistrate should have been to come to a finding based on some evidence that the bail‑bond executed by the petitioner has been duly forfeited and then to issue a notice to show cause why the penalty should not be realized from him." The same view, it appears, was also taken by the Calcutta High Court in the case of Mon Mohan Chakrabortf and another v. King Emperor (A I R 1928 Cal. 261), where Chief Justice Sanderson and Chotzner, J., in a case dealing with the forfeiture of a bail bond laid down the following principle:‑ "The provisions of this section indicate that two steps are to be taken, first 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 aforesaid, may call upon the person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid." Upon these authorities the learned Advocate for the appellant argues that in the present case the forfeiture of the bond could not be said to have been proved, for no evidence was taken on oath and no opportunity given to the appellant to be present at the time the evidence was taken or to adduce his own evidence. As against this, however, the learned counsel appearing for the State points out that different principles are applicable to the case of bail bond. In such cases it is not necessary or incumbent upon the Court to take evidence on oath as it would be in the case of bond taken under section 107 of the Code of Criminal Procedure, for, in the case of bail bonds the materials upon the record, namely, the bail bond itself and the fact that the person bound by that bond is not present in Court should be sufficient material upon which the finding of the forfeiture of the bond could be recorded and the bond declared to be forfeited. Furthermore that even the non‑recording of the grounds, notwithstanding the use of the word "shall" in the section itself, is merely an irregularity which, if no prejudice has been caused to the person complain ing, is curable under section 537 of the Code of Criminal Procedure. In support of this contention, the learned Counsel has relied upon the decisions in the cases of Rajbansi Bhagat and another v. Emperor (A I R (929 Pat. 658) and Annada Charan Chakraborti and others v. Emperor (A I R 1943 Cal. 251). In the Patna case, Macpherson, J. held that there was 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. In this Patna case, the facts were somewhat similar to the facts of the case before us. There also on the date fixed, although the accused was not present, his mother filed a petition that her son was unable to attend as he was suffering from fever and the Magistrate forthwith took action without any further enquiry into the allegation. In those circumstances His Lordship held that since the Court had before it the order for bail, the bail‑bond and the fact that the accused was not produced in Court there was sufficient evidence to enable the Magistrate concerned to come to the finding necessary under section 514 of the Code of Criminal Procedure and that the order forfeiting the bond recorded by the Magistrate was in substantial compliance with the said section. In the Calcutta case, Henderson, J., took the view that the failure to record a formal order that the bond executed by the accused had been forfeited before calling upon the accused to show cause why the penalty under the bond should not be paid is a mere irregularity and the High Court will not interfere in revision merely on that ground. In the present case, therefore, it is urged on behalf of the State that the affidavit furnished by the complainant and the medical certificate produced by the appellant with his application for adjournment when taken in conjunction with the other facts already on the record, namely, the bail‑bond itself and the fact that the accused was not present in Court were sufficient evidence upon which it could be said that the forfeiture of the bond had been proved to the satisfaction of the Court and, therefore, there had been substantial compli ance with that order. It is further urged that in any event since the show‑cause notice was issued both on the appellant and the surety and they di in fact show cause, no question of prejudice arises. We find, however, that on the date when the appellant showed cause no evidence of any kind whatever was taken, nor was the appellant given any opportunity to cross‑examine the complainant on the basis of the affidavit upon which the Court placed reliance in declaring the bond to be forfeited, hence, it could not be said that the appellant bad been given sufficient opportunity to show cause. It appears to us from the order‑sheet that the learned Judge did not at all consider it necessary that on this occasion any evidence at all should be taken. There is sufficient authority to support the view that even after notice to show cause has been issued the person or persons sought to be penalized must be given an opportunity to adduce evidence and that the matter must be properly inquired into. In fact, in one case we find that the learned Judge went so far as to say that on this occasion the witnesses upon whose evidence the Court relied on the previous occasion in declaring the bond to be forfeited, if examined in the absence of the person sought to be penalized, must again be recalled and examined and cross‑examined in his presence and if that is not done, there is no proper enquiry and no sufficient materials for being satisfied that the cause shown is not sufficient. Reference may in this connection be made to a decision of the Calcutta High Court in the case of Queen‑Empress v. Har Chandra Chowdhury and another (I L R 25 Cal. 440), where their Lordships Banerjee and Wilkins, JJ., observed as follows: "It is true that section 514 of the Code of Criminal Proce dure, by enacting that "whenever it is proved to the satisfac tion of any Court by which a bond under the Code is taken that such bond has been forfeited, it shall record the grounds of such proof, and it may call upon any person bound by such bond to pay the amount or to show cause", indicates that the evidence upon which the Court is satisfied that a forfei ture has been incurred and that the person bound by the bond should be called upon to pay or to show cause, may be 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 his presence or giving him any opportunity of cross‑examining the witnesses on whose evidence the forfeiture is held to be established." Although this also was a case of a bond under section 107 of the Code of Criminal Procedure, we are of the opinion that the same principle should also apply to the case of a bail‑bond, for, indeed, it would be grossly unjust if persons are penalized without being given an opportunity to show cause that they were prevented from complying with the bond for some cause beyond their control. Since this was clearly not done in the present case, although specifically prayed for by the appellant, we cannot help feeling that the appellant was seriously prejudiced. In the present case, furthermore, we find that not only on this occasion but on the subsequent occasion when steps began to be taken for the realization of the penalty and a second notice was issued upon the appellant and he again filed a petition expressly praying in that petition that evidence be taken which he will be able to produce The nature of the evidence was also indicated in this petition and it was said that a member of the District Board and an Assistant Head Master of a School who were the persons that took him to their house from Toyab Bazar, where he was attacked with diarrhoea and consulted the doctor, would be able to depose that he was in fact too unwell to come to Court. Notwithstanding this, no opportunity was given to the appellant to either produce his witnesses or to cross‑examine the com plainant. In these circumstances, we are satisfied that the appel lant has been denied justice and, therefore, the order of the Special Judge directing the realization of the penalty cannot be sustained. We accordingly set aside the said order in exercise of our revisional powers and remand the case for disposal in accordance with law, in the light of the observations that we have made above, from the stage in which it was immediately after the notice to show cause was issued on the 13th of June 1956. HASAN, J.‑

I agree. Z. A. S. Order set aside.