| SooperKanoon Citation | sooperkanoon.com/505340 |
| Subject | Criminal |
| Court | Madhya Pradesh High Court |
| Decided On | Jul-27-1960 |
| Judge | Shiv Dayal, J. |
| Reported in | 1961CriLJ673 |
| Appellant | Pohap Singh Bhamarsingh |
| Respondent | State of Madhya Pradesh |
| Cases Referred | Harbilas v. State |
Shiv Dayal, J.
1. The Additional Sessions Judge, Bhind was trying Tejsingh accused, Pohap Singh petitioner stood surety and executed a bail bond for Rs. 2000/- for his appearance. On June 22, 1959 Tejsingh appeared in the Court but on the next date of hearing, which was June 23, he did not appear. Bail bond was forfeited and notice to show cause why the penalty should not be recovered from the surety was issued to him. On the 29th April the surety appeared and prayed that a non-bailable warrant be issued. That was done, The surety got him rearrested and the trial proceeded further. However, after hearing the surety, the trial Judge ordered recovery of Rs. 500/- from him.
2. It is urged by Shri Nagarkar that bail bond could not be forfeited on the 2nd June nasmuch as no prior notice had been given to the surety. In my opinion, this contention cannot be accepted. It seems clear to me that Section 514 of the Criminal Procedure Code contemplates two Stages:
1. Proof to the satisfaction of the Court that the bond has been forfeited; and
2. Calling upon the surety to pay the penalty or to show cause why it should not be paid. Proof required at the first stage depends upon, the facts and circumstances of each case. In some cases evidence may be required to show that) conditions under which or the event on the happening of which the bond can be forfeited exist; for instance, bonds taken under 'Section 105 and Section 107 of the Code of Criminal Procedure or in a case where some condition is imposed and subsequently it is complained that the condition is not fulfilled or is violated. But in the case of a bond for appearance, the court is able to see, by its own observation whether the accused-is present or not. No independent evidence is necessary for that purposes, and) it would be meaningless to require some evidence to prove that fact.
3. It is urged with some vehemence that if a notice is not given to the surety he is deprived of a valuable right, namely, to show to the Court that there was sufficient cause for non-appearance of the accused on that particular day. I see no such difficulty, because at the second stage when the notice is given to the surety he can satisfy the Court of that fact When the surety appears in answer to the notice to show cause the Court can determine whether the cause shown is sufficient.
If the court comes to the conclusion that the cause was sufficient for non-appearance it is empowered to accept it and to order that the penalty shall not be paid. It was faintly suggested to mo that under Clause 5 of Section 514, the Court has merely the discretion to remit only a portion of the penalty, but not the whole. In my opinion, this is misreading the section. On being satisfied that the absence of the accused was due to circumstances beyond his control, in spite of the forfeiture of the bond, the Court has power to direct that no penalty shall be re-covered. In my judgment, therefore, no evidence is necessary before ordering forfeiture of the bond for appearance, when the accused does not appear.
4. Learned Counsel relies on Bubai Manjhi v. State : AIR1958Pat286 and Ajudhya Prasad v. The State 1953 Cri.L.J. 119 : AIR 1953 Madh-B 4. In my opinion the Patna case does not help the petitioner. There a surety bond was executed under Section 107 of the Code of Criminal procedure and, as discussed by me above, in that case evidence was necessary for the satisfaction under Section 514 and notice should, therefore, have been issued.
5. It is true that Shinde, C.J. in the M.B. case 1953 Cri.L.J., 119 : AIR 1953 Madh-U 4 took the view that a notice was necessary before forfeiting a surety bond. With utmost respect, I' cannot subscribe to that view. I have gone through the judgment with greatest care and attention. I do not see any reasoning in that judgment. The learned Chief Justice merely, relied on three decisions; Ram Bilas v. Emperor AIR 1940 Pat. 375, Mon Mohan v. Emperor AIR 1928 Cal 261, Mt. Taro v. The Crown AIR 1949 EP 221.
In AIR 1940 Pat. 375 case, the surety had undertaken that the accused would remain at a particular place but subsequently, the Magistrate received information that the accused had gone to the place where they had bound themselves not to go. Now it is obvious enough that in such a case an inquiry was necessary and that required a notice to the surety.
6. The case reported in AIR 1928 Cal 261 has no application here because that was a case of a surety for good behaviour. The case reported in Mt, Taro v. The Crown AIR 1949 EP 221 was no doubt a case of non-appearance of an accused on the date of healing, but in that case too the learned Judge did not give any reasons for arriving at this conclusion. He placed entire reliance on AIR 1928 Cal 261 (cited above). I have already mentioned that the said Calcutta. case was about the surety bond for good behaviour and this seems to have escaped the attention of the learned Judge, if I may say so with respect.
When I say that there are two stages (1) forfeiture of bail bond and (2) recovery of penalty and that no notice is required for the first but one is required for the second, I am supported by a decision of Dixit, J. (as ray Lord then was) in Harbilas v. State AIR 1952 Madh-B 2.
7. It is then urged that the amount of Rs. 500/- which has been ordered to be realized is excessive. The trial was of a dacoity case and if the accused did not appear, the petitioner incunred a serious penalty. However, since he subsequently got the accused re-arrested and, as the trial Judge himself observed, the surety was diligent I think the ends of justice would be served if the amount of penalty is reduced to Rs, 300/-. This revision is partly allowed. The order to recover the penalty from the petitioner is modified and the amount to be recovered is reduced to Rs. 300/-.