State vs Hebatkhanji Meghrajji

Shah, C.J.—These are two applns. in revn. against the order of the Sea. J. Jhalawad, setting aside the orders of the First Class Mag. Dasada, by which the said Mag. forfeited the surety bonds of the opponents & ordered recovery of the sum of Rs. 5000 in one case & Rs. 1000 in the other case. The opponents were sureties of one Juha Gemar who was accused of offences Under Sections 307, 457 & 394, Penal Code & Under Sections 380 & 457, Penal Code respectively. By the bail bonds, which were in identical terms in the two cases, the accused had undertaken to appear before the Ct. until the decision of the case as directed by the Ct. & the two sureties had, on their part, undertaken that the accused will attend the Ct. as directed and that in default they will forfeit the sum specified to the Saurasbtra Govt. It seems that the hearing of the case was fixed for 13-10-1949 & after a shifting of the dates, it was subsequently adjourned to 8-12-1949. On that date neither the accused nor the sureties were present & the Mag. thereupon issued notice to the sureties to show cause why the surety bonds should not be forfeited. The hearing of the case was then adjourned to 22-12-1949. On 22-12-1949 the sureties appeared & applied to the Ct. for time to produce the accused & they also prayed that the notice to show cause against the forfeiture of the bonds may be cancelled. Time was thereupon given to the sureties to produce the accused, but it appears the accused was absconding & they could not produce him & ultimately the learned Mag. after hearing the sureties, ordered the forfeiture of the bonds & the recovery of the above said sums.

The question as to whether the accused or the sureties have incurred a forfeiture of the bond must depend upon the terms of the bond & in this case the bond contains an undertaking by the accused for appearance before the Ct. until the decision of the case & as directed by the Ct, The bond does not specify any date for the appearance & it was therefore necessary that a date for his appearance should have been specified & notified to him before any breach of the undertaking could arise. The sureties had undertaken that the accused would attend as directed by the Ct. & in default they wore to forfeit the amount of the bond. The bond did not require them to produce the accused on the date of the next hearing of the case & any intimation to them to keep the accused present on such date will not, therefore, dispense with the necessity of giving intimation to the accused himself. Primarily the accused was to remain present before the Ct. when required & it was only if he meds default in appearance after due intimation that the liability of the sureties was to arise. It was urged by the learned Advocate General that such a construction of the bond would lead to anomalous results & that the purpose of the bail bond would be defeated altogether if the accused absconds in which event it will not be possible to give him intimation of the date for appearance. Such a contingency is no doubt possible, but that is scarcely a relevant consideration & the liability of the sureties will have to be judged by the terms of the bond & the undertaking given by them. If such a complication was to be avoided the bail bond should have required the accused to appear on every day from the date of the execution of the bond until the final decision of the case & that would have dispensed with the necessity of giving him intimation of the dates of the hearing & the accused might then have remained, absent at his peril.

In Fatehchand v. Emperor AIR 1940 Sind 136, it was held that if no day is specified in the bond but the day is to be a day of which notice is to be given thereafter, reasonable notice must be given to enable both the accused & the surety to attend. Therefore, it was necessary that intimation of the date of the hearing on 8-12-1949 should have been given to the accused. It is admitted that the accused was not given such intimation, but the learned Advocate General has urged that intimation of the hearing on 13-10-1949 was given to the pleader of the accused & also to the surety. It appears, however, that on 9th October the pleader had ''written to the Mag. for an adjournment of the case on the ground that the date fixed was not convenient to him, but the adjournment was refused & on 13th October the pleader was not present though the sureties wore present on that date 13th October too was fixed after changing the previous dates two or three times & it does not appear that the accused had really any intimation of that date. Assuming however that he had the intimation & did not appear on that date, action has hero been taken for the absence on 8-12-1949 & not for the absence on 13th October, and that being so, it is immaterial if the accused was aware of this latter date & failed to appear. The fact does remain that the accused had no notice of the hearing of the case on 8-12-1949 & before any liability could arise under the bond it was necessary that such a notice should have been given to him. No doubt the sureties were informed of the date & they were asked to keep the accused present on 8th December, but it was essential to give notice of the hearing to the accused & in the absence of such a notice, neither the liability of the accused nor that of the sureties would arise. The learned Mag. was, therefore, wrong in forfeiting the bonds & in ordering the recovery of the sums there-under & that order has been properly set aside by the learned Ses. J. These revn. applns. fail & are dismissed.

Chhatpar, J.

I agree.