Thakur Kishan Narayan Singh and others vs Emperor

Adami, J.—The petitioners in this case were bound down in proceedings u/s 107, Cr. P. C, to keep the peace for one year in January 1920. Later on in that year a complaint was laid before the Magistrate by the opposite party to the effect that the petitioners were so acting as to cause a breach of the peace. The Magistrate did not treat this as an ordinary complaint but sent the matter to the police for enquiry. The police seem to have made an enquiry and to have submitted a report. On the 3rd of December 1920 the Deputy Commissioner on reading the report of the police stated that he was of opinion that the facts disclosed justified the issue of an order on the petitioners to show cause why they and their sureties should not u/s 514 of the Criminal Procedure Code forfeit their bonds of Rs. 200 each. The Deputy Commissioner ordered that case should be transferred to a Deputy Magistrate for disposal after issue of notice. A notice accordingly was issued to the petitioners asking them merely to show cause why their bonds should not be forfeited.

The petitioners duly appeared and the police were directed to produce witnesses, and these witnesses when produced were examined and cross-examined in the presence of the petitioners. During the course of the proceedings the Dy. Magistrate who was hearing the case considered whether he should frame charges against the petitioners under certain sections of the Penal Code. After the examination of the witnesses produced by the police the petitioners called no evidence and then the Dy. Magistrate drew up an order finding that the petitioners had committed breaches of the peace and directing that their bonds should be forfeited. An appeal was made to the Dy. Commissioner who upheld the finding of the Dy. Magistrate.

The orders of the Dy. Commissioner and the D. Magistrate are assailed before me on the ground that they were passed without jurisdiction, Mr. Hasan Imam''s contention is that the wording of S. 514 shows that, before issuing an order calling upon a person who is subject to a bend to show cause why he should not forfeit it, the Magistrate is bound to have before him sufficient proof that a good reason exists for making the order and the section requires that the grounds of such proof must be recorded. In the present case the petitioners were merely called upon to show cause on the police report which had been submitted to the Magistrate, and evidence was taken on oath after the order had been issued. S. 514 lays down that it must be proved to the satisfaction of the Court that the bond has been forfeited and 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. The contention of Mr. Hasan Imam is supported by the case In Re Hariram Birbham 11 B.H.C.R. 70. There it is clearly laid down that the Magistrate cannot have jurisdiction to issue an order to show cause u/s 514 until it has been proved, and proof has been afforded by evidence recorded on oath that there is justification for forfeiting the bond; there must be prima facie proof that the bond has been forfeited. It is quite clear, I think, that in the present case the Dy. Magistrate treated the case as a criminal case and this is shown by his doubt as to whether charges should be framed. Proceedings under S. 514 are of the nature of civil proceedings and it has been more than once laid down that the provisions of section 514 must be most carefully observed. I do not think that as a matter of fact, the petitioners were in any way prejudiced by the procedure adopted by the Dy. Commissioner, but there has been a failure to carry out the express provisions of the law and the Dy. Magistrate acted without jurisdiction in failing to record proof, before he issued notice to show cause, and on this ground I must hold that the petitioners are entitled to have the proceedings set aside and the amounts that they have paid as forfeited refunded to them.