Gurupada Mudaliar Vs. Government of Mysore - Court Judgment

Excerpt:
the case discussed about the procedure for forfeiture of bond taken for appearance of accused, within the framework of section 514 of the criminal procedure code, 1898. - religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act held, section 8 would clearly indicate that the repeal of religious endowments act would apply in so far as hindu religious endowments to which the act applies. but in so far as the jain religious endowments, the repeal by act (ii) of 1927 is not applicable. further, the religious endowments act 1863 has been repealed only in so far as it applies to hindu religious endowments and the repeal is specific to that extent and therefore the applicability of the act to the jain religious endowments act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to fill up the vacancy of the membership of jaina mathasthapana committee held, section 10 of the act would provide for filing application for filling up the vacancy which would occur among the members of the committee before the district judge as contemplated under the provisions of the act, since the same would remain in force in so far as the jain religious endowments are concerned. section 10 is the only provision on which the applicants would have to fall back upon to seek for filling of the vacancy that arises in the committee. that being so, the i additional district judge, was not justified in dismissing the petition filed under section10 of the act, as not maintainable. the court has to consider the application filed by the petitioner under section 10 of the religious endowments act, 1863 (act xx of 18863). - in this case the surety was given this opportunity but he failed to furnish any reason for the absence.order1. the petitioner was surety for appearance of the accused in c. c. no. 2699 of 50-51 on the file of the city magistrate, bangalore. owing to repeated absence of the accused the case had to be adjourned a number ol times. warrants issued to secure his attendance were returned unserved & proclamation was ordered. the accused then appeared but, after prosecution witnesses were examined, charge was framed and the witnesses were summoned for further cross-examination as desired by him again absented himself with the result that the further proceedings were inevitably postponed. oil 7-3-1951 the court ordered issue of nonbailable warrant to the accused and notice to the surety to show cause why the bond should not be forfeited. on the next date the surety alone turned up. the learned magistrate after noting that the surety was unable to explain as to why the accused was absent made an order that the bail bond for rs. 200/- executed by him was forfeited in entirety. the appeal preferred against this order to the district magistrate being dismissed the surety has applied to this court under section 439 of the code of criminal procedure for revision of the said orders.2.sri srinivasa rao on behalf of the petitioner urged that the procedure adopted for forfeiting the bond is defective as notice was not issued to the surety in accordance with section 514 of the code. his contention is that there should have been a second notice after forfeiture and the grounds of forfeiture should have been recorded after taking evidence. section 514 states'whenever it is proved to the satisfaction of the court by which a bond under this code has been taken.....or when the bond is for appearance before a court to the satisfaction of such court,that such bond has been forfeited the court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.'3.there is difference between a bond taken for appearance of accused and a bond for the purpose of section 106 etc. as regards the latter, some evidence is required to show that conditions under which or events on the happening of which the bond can be forfeited exist. in the case of a bond for appearance, the court by its own observation is able to see whether the person concerned is present or absent. no independent proof is necessary for this and it is a meaningless formality to take evidence of an obvious fact. 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. in this case the surety was given this opportunity but he failed to furnish any reason for the absence. there is therefore no force in the objection alleged by the petitioner. sri srinivosa rao cited 'zulmi kahar v. emperor', air 1929 pat 643 in support of his argument. the decision is that of a single judge and no doubt in favour of the petitioner. in the same volume a contrary view is expressed by another judge of the same court at page 658, 'rajbansi bhagat v. emperor', air 1829 pat 658. to the same effect is 'kumarappan v. the king', air 1939 rang 427. in my opinion, the view taken in these cases has to be preferred to that in the case cited for the petitioner. 'mon mohan v. emperor', air 1928 cal 261 is distinguishable as it related to a proceeding under section 110, criminal procedure code.4.it was next argued that the amount forfeited may be reduced. the surety did not put forward before the trial court any reason for this and progress of the case was hampered by repeated absence of the accused. the amount forfeited is not heavy and so i decline to interfere with the orders of the two courts.5.the petition is dismissed.6. petition dismissed.

Judgment:
ORDER

1. The petitioner was surety for appearance of the Accused in C. C. No. 2699 of 50-51 on the file of the City Magistrate, Bangalore. Owing to repeated absence of the accused the case had to be adjourned a number ol times. Warrants issued to secure his attendance were returned unserved & proclamation was ordered. The accused then appeared but, after prosecution witnesses were examined, charge was framed and the witnesses were summoned for further cross-examination as desired by him again absented himself with the result that the further proceedings were inevitably postponed. Oil 7-3-1951 the Court ordered issue of Nonbailable warrant to the accused and notice to the surety to show cause why the bond should not be forfeited. On the next date the surety alone turned up. The learned Magistrate after noting that the surety was unable to explain as to why the accused was absent made an order that the bail bond for Rs. 200/- executed by him was forfeited in entirety. The appeal preferred against this order to the District Magistrate being dismissed the surety has applied to this Court under Section 439 of the Code of Criminal Procedure for revision of the said orders.

2.Sri Srinivasa Rao on behalf of the petitioner urged that the procedure adopted for forfeiting the bond is defective as notice was not issued to the surety in accordance with Section 514 of the Code. His contention is that there should have been a second notice after forfeiture and the grounds of forfeiture should have been recorded after taking evidence. Section 514 states

'whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken.....or when the bond is for appearance before a Court to the satisfaction of such Court,

that such bond has been forfeited the Court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.'

3.There is difference between a bond taken for appearance of accused and a bond for the purpose of Section 106 etc. As regards the latter, some evidence is required to show that conditions under which or events on the happening of which the bond can be forfeited exist. In the case of a bond for appearance, the Court by its own observation is able to see whether the person concerned is present or absent. No independent proof is necessary for this and it is a meaningless formality to take evidence of an obvious fact. 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. In this case the surety was given this opportunity but he failed to furnish any reason for the absence. There is therefore no force in the objection alleged by the petitioner. Sri Srinivosa Rao cited 'ZULMI KAHAR v. EMPEROR', AIR 1929 Pat 643 in support of his argument. The decision is that of a single Judge and no doubt in favour of the petitioner. In the same volume a contrary view is expressed by another Judge of the same Court at page 658, 'RAJBANSI BHAGAT v. EMPEROR', AIR 1829 Pat 658. To the same effect is 'KUMARAPPAN v. THE KING', AIR 1939 Rang 427. In my opinion, the view taken in these cases has to be preferred to that in the case cited for the petitioner. 'MON MOHAN v. EMPEROR', AIR 1928 Cal 261 is distinguishable as it related to a proceeding under Section 110, Criminal Procedure Code.

4.It was next argued that the amount forfeited may be reduced. The surety did not put forward before the trial Court any reason for this and progress of the case was hampered by repeated absence of the accused. The amount forfeited is not heavy and so I decline to interfere with the orders of the two Courts.

5.The petition is dismissed.

6. Petition dismissed.