Patna High Court
Bishambar Mahton vs Emperor on 7 February, 1930
Equivalent citations: 128IND. CAS.348
JUDGMENT Macpherson, J.
1. This is an application in revision against an order under Section 514 of the Code of Criminal Procedure passed by the Sub-Divisional Magistrate of Bettiah forfeiting under Section 514 of the Code of Criminal Procedure Rs. 600 in respect of a bail-bond entered into by the petitioner Bishambar Mahton in respect of six persons whom the Sessions Judge of Muzafferpur had directed to be released on bail of Rs. 100 each, which sum was reduced on appeal by the District Magistrate of Champaran to Rs. 300.
2. Though the point has not been taken at any stage, it appears from the bail-bond itself that the name of Nitai Mahton, one of the six persons was omitted from it so that he must have been released without bail. The maximum forfeiture would, therefore, be Rs. 500.
3. It further appears from the bail-bond which is in the form authorized at page 187 of the High Court General Rules and Circular Orders, Criminal, Volume II, that the surety bound himself to surrender the parsons released on bail "to the District Magistrate on the day of decision of the appeal or within three days thereafter or on such other date as the District Magistrate may direct."
4. The Session Judge heard the appeal on the 5th October last which was the last , working day of the Criminal Courts before the Puja holidays and reserved judgment without fixing any date. He delivered judgment on the first open day of the Sessions Court after the holidays which was the 19th October. The intimation of the dismissal of the appeal reached the Sub-Divisional Magistrate on the 21st October and on the following day he issued non-bailable warrants against the accused. On the 29th October, they were produced before him and sent to jail, and the Magistrate issued notice to the sureties (there was really one surety) to show cause on the 5th November why the entire amount of security should not be forfeited. On the 6th November, having set out that the petitioner was not present and had not received the notice personally as he was reported to have gone to Muzafferpur in connection with the case, the learned Magistrate then forthwith forfeited the full amount of Rs. 600 from the petitioner as already stated. On the 5th December in a fresh order he set out that the petitioner had bound himself to surrender the accused within three days after dismissal of the appeal, but failed to do so. He refused to accept the excuse of the petitioner that his mukhtar informed him that the Judge would deliver judgment on the 5th November, the day on which the Civil Court re-opened, on which he had in fact gone to Muzafferpur, disbelieving it on the ground that the accused who were neighbours of the petitioner were arrested on the 29th October.
5. The District Magistrate in appeal pointed out that the decision in Zulmi Kahar v. Emperor 122 Ind. Cas. 532 : 11 P.L.T. 572 : A.I.R. 1929 Pat. 643 : Ind. Rul. (1930) Pat. 212 : 31 Cr. L.J. 420 was inapplicable and the Magistrate had sufficient proof in his own record that a good reason existed for making the order of the 29th October to show clause. He held that the fact that the petitioner lived three miles from the other accused was no excuse and he ought to have ascertained accurately the dates on which the persons for whom he stood surety, were to be produced. He, however, reduced the amount forfeited as already indicated.
6. Three contentions are advanced on behalf of the petitioner; first, that the Magistrate was bound before calling upon the petitioner to show cause why the penalty of hie bond should not be paid, to record evidence and a finding thereon that it was proved to his satisfaction that the bond had been forfeited, secondly, that on the construction of the bond itself it has not been forfeited; and, thirdly, that, in circumstances of the case, there was a bona fide mistake on the part of the petitioner due to the failure of the Sessions Judge to fix a date for judgment and the petitioner reasonably believed that judgment would not be delivered until the Civil Courts reopened.
7. The first ground is here untenable, as shown in the decisions in Rajbansi Bhagat v. Emperor 124 Ind. Cas. 85 : 11 P.L.T. 575 : A.I.R. 1929 Pat. 658 : Ind. Rul. (1930) Pat. 405 : 31 Cr. L.J. 605 and Madan Mohan Beharee Lal v. Emperor Cr. Rev. No. 663 of 1929 unreported in which the previous decision, including the decision referred to in the judgment of the District Magistrate, were considered and distinguished.
8. The second point, however, cannot be gainsaid. The matter has already been considered in this Court in Bhuneshwar Misra v. Emperor Cr. Rev. No. 395 of 1928 unreported where Ross, J., on a construction of a bail-bond in the same form held as follows:
Now the term of the bond was to surrender the accused persons to the District Magistrate on the day of decision or within the three days after or on such other date as the District Magistrate might direct. The petitioner, therefore, apparently had three alternatives before his bond could be forfeited and the order passed against him was not in terms of the conditions of the bond.
9. The learned Government Pleader is unable to suggest any other reasonable interpretation of the terms of the bond and I am satisfied that it will not bear any other construction. In fact the drafting of the bond is defective and requires amendment, and, of course, there can be no forfeiture of the penalty of the bond except on its own terms. The second argument prevails and it must be held that the forfeiture even in the case of five of the persons released on bail was not valid. The order must, therefore, be set aside.
10. It is unnecessary, therefore, to say more about the third argument on behalf of the petitioner than that one is not disposed to reject it rightly.
11. The Rule is made absolute and the amount ordered to be forfeited must if realised, be repaid to the petitioner.