Zulmi Kahar vs Emperor

Fazl Ali, J.—The circumstances which have given rise to this application are briefly these:

On 6th July 1928 the petitioner stood surety for the appearance of one Sitaram Kurmi, who was being prosecuted for an offence u/s 406, I.P.C., in the Court of Mr. V.D. Misra, Deputy Magistrate at Arrah. It appears that on 14th July 1928 and 26th July 1928, which were the next dates for hearing of the case, accused duly appeared in Court, but on 6th August 1928 he did not appear and his mother filed a petition saying that her son was suffering from fever and was unable to attend.

The learned Magistrate thereupon issued a warrant of arrest against the accused returnable by 15th August 1928, and on the same day he issued a notice to the petitioner to show cause why the bail-bond should not be forfeited and the penalty realized from him. On 15th August 1928, which was the date fixed for showing cause, the petitioner did not appear to show cause and the learned Magistrate proceeded to pass an order directing a distress warrant to be issued against the petitioner for recovering the full penalty of Rs. 200 from him.

The petitioner thereupon moved the District Magistrate against the order of Mr. Misser, but the learned District Magistrate dismissed his application with the following observations:

The order-sheet shows that he (the petitioner) not only failed to produce the accused but failed to appear on the data fixed for cause.

His excuse is that both he and the accused were ill. But the accused was not too ill to appear as soon as the bail amount was forfeited. Petition rejected.

The petitioner has now come up to this Court in revision.

I find on referring to the bail-bond executed by the petitioner that it is not wholly in form and that a number of spaces which should have been filled up have been left blank. Then again as has been pointed out by the learned vakil for the petitioner the provisions of Section 514, Criminal P.C., have not been fully complied with. It has been clearly laid down in this section that when a bond has been proved to have 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.

Now, it has been held that it is the duty of the Magistrate to record evidence and come to a definite finding that the bond has been forfeited before a notice is issued upon the bailor to show cause why the penalty should not be realized from him: vide In re, Hariram Birbhan 11 B.H.C. 170, and In re, Mohesh Ghundra Roy 10 C.L.R. 571. In the case of Kishna Narain Singh v. Emperor AIR 1922 Pat. 242, Adami, J. distinctly pointed out 11 B.H.C. 170 that u/s 514, Criminal P.C, the Magistrate is bound to have before him sufficient proof that a good reason exists for making the order, and the ground of such proof must be recorded before issuing notice upon the person who is subject to a bond, to show cause why he should not forfeit it; and 10 C.L.R. 571 where there has been a failure to carry out the express provisions of law the question of prejudice becomes immaterial.

Now, in this case it is clear from the order sheet that although the accused was absent on 6th August 1928, his mother did appear in Court and filed a petition stating that her son had been laid up with fever. The learned Magistrate, however, without properly investigating the matter assumed that the caused had deliberately absented himself from the Court and issued a notice to the petitioner to show cause why the bail-bond should not be forfeited, and the penalty realized from him. 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. I am conscious of the fact that the petitioner is not entirely free from blame and that so far he has not placed any material before the Court to show that he was really ill on the 15th August when he was called upon to show cause, but in my opinion the provisions of law should have been strictly obeyed in this case and the learned Magistrate ought to have acted in the manner provided by Section 514, Criminal P.C.

I would, therefore, set aside the order passed by the learned Magistrate and direct that if he wants to proceed further in the matter he should give an opportunity to the petitioner to show cause and then pass any such orders as may appear to be proper in the circumstances of the case.