Patna High Court
Rajbansi Bhagat And Anr. vs Emperor on 14 June, 1929
Equivalent citations: 124IND. CAS.85, AIR 1929 PATNA 658
JUDGMENT Macpherson, J.
1. This is an application in revision against the order of the Assistant Sessions Judge of Saran forfeiting the bail-bond executed by the petitioners for the production of Radhakishun Koiri in the Sessions Court and directing that "Rs. 1,200 be realized from the principal and the two sureties."
2. The facts which I have ascertained with some considerable difficulty are that Radhakishun Koiri and several other persons having been committed to the Sessions on a charge under Section 395, Indian Penal Code, an order releasing him and several co-accused on bail was passed by the Sessions Judge on 18th February and Radhakishun was released on the same day on his own bond and on bail furnished by the petitioners. The bond is in the usual form of "bond and bail-bond after arrest." Radhakishun Koiri binds himself to attend the Court of Session at chapra "on the date fixed for trial" on pain of forfeiting Rs. 1,200 while the petitioners declare themselves surety for him that he shall so attend "on the date fixed for trial" on pain of forfeiting a sum of Rs. 600 each. The form used is in the vernacular; the entries in the vacant spaces are in English. The case was made over on 18th to the Assistant Sessions Judge who on 20th fixed 11th March for trial. On 11th March all the prisoner were present including those who were released on bail except Radhakishun Koiri. The learned Assistant Sessions Judge waited from 10-30 A. M. to 2-40 P.M. and then recorded:
Radhakishun Koiri accused does not turn up even now though repeatedly called out and it is not known whether he will appear. He will, therefore, be tried separately. Ask the District Magistrate to cancel the bail-bond which is forfeited and issue notice to the bailors to produce the accused in Court. Proceeding under Section 514, Criminal Procedure Code, is separately drawn up.
3. In the separate proceeding notice is on the same date directed to issue on Radhakishun Koiri and on his sureties under Section 514, Criminal Procedure Code, to show cause why the penalty mentioned in the bail-bond should not be enforced. On 15th it was noted in the order-sheet of the Sessions record that Radhakishun Koiri appeared and prayed to be allowed to remaon bail and to join in the trial then proceeding. He stated that. at the time when he was released on bail he was told that notice should be served on him for his appearance but that no notice was served either upon him or upon his sureties, that when he came to Chapra on 14th he heard the date fixed was the 11th and that he had not been wilfully negligent. The petitioners further stated that it was mentioned in the bond which they executed that notice will be issued for the appearance of the accused but no notice had been issued and it was entirely due to this fact that they had failed to produce the accused on 11th, of which date they were in ignorance. The learned Assistant Sessions Judge pointed out that the bond did not show that a notice was to be issued and added "In my opinion he kept back without any good or sufficient ground." On 23rd March be beard Pleaders for Radhakishun and the petitioners and again pointed out that the allegation that notice was to be issued was not supported by the bail-bond but that the accused was to attend "on the date fixed for trial." He held that no sufficient cause had been shown for the failure of the petitioners to produce him and passed the order as already indicated for the realization of Rs. 1,200 from the principal and the two sureties.
4. It has been urged that the proceedings of the learned Sessions Judge are without jurisdiction on the ground that neither had he before him any proof that the bond had been forfeited nor did he record the grounds of such proof before he called upon the petitioners to show cause why the penalty of the bond should not be paid Reference is first made to Kishna Narain Singh v. Emperor 67 Ind. Cas. 830 : A.I.R. 1922 Pat. 242 : 3 P.L.T. 381 : 23 Cr.L.J. 478, and to In re Hariram Birbhan 11 B.H.C.R. 170 and to In the matter of Mohesh Chundra Roy 10 C.L.R. 571. But there is a palpable distinction between bonds which are not, and those which are, for appearance before a Court. Proof other than is directly before the Court in its own record is required in the former and not in the latter. The decision of a Judge of this Court in Zulmi Kahar v. Emperor 122 Ind. Cas. A.I.R. 1929 Pat. 643 : Ind. Rul. (1930) Pat. 212 : 31 Cr.L.J. 420 is more important. But in that case there was this distinction that when the accused failed to appear, his mother filed a petition stating that her son was unable to attend as he was suffering from fever and the Magistrate took action forthwith without any inquiry into the allegation and when owing, it was alleged, to illness the surety failed to appear to show cause why the bond should not be forfeited, at once made an order of forfeiture. In the present case the Court had before it the order for bail, the bail-bond and the fact that the petitioners did not produce the accused, and I am of opinion that there was a substantial compliance with Clause (1) Section 514, and that this Court would not be justified in interfering in revision on the ground urged where there was no possible prejudice.
5. But, in my judgment, it has not been established that the petitioners have become liable under the bond. A comparison of the bail-bond under consideration with the bonds executed by the co-accused shows that the vacant spaces in the latter were filled up in vernacular and that in spite of the fact that the bonds were executed after the 20th on which the hearing was fixed for the 11th March the date of attendance was given in the words "indul talab," equivalent to "on call." In the absence of evidence on the point it is not an unreasonable inference that the petitioners understood that the date which should be "fixed for trial" would be intimated to them. It would not be reasonable to expect that they should remain at Chapra until the Sessions Court should on some unknown date fix a date for the trial I cannot help thinking that the failure to intimate the date to the sureties was due to some error on the part of some subordinate of the District Magistrate. At any rate there was abundant room for a misunderstanding, and in my opinion, the failure of the petitioners to produce the accused was due to such a misunderstanding and was not intentional or even due to negligence. None of the co-accused of Radhakishun reside in the village of the petitioners so that they might have received information from them or their relatives In my opinion it was at least implied that the date to be fixed on which they should produce the accused at the Sessions would be intimated to them. The entries in English of the expression "on the date fixed for trial" would naturally lead to this conclusion in the minds of rustics like the petitioners who are Koiris, and it is to be noted that before notice was served upon them in Court on 15th March they had already filed a petition to the effect that they had been assured that notice would be issued.
6. The Rule is, therefore, made absolute and the order of the learned Assistant Sessions Judge forfeiting the amount of the bond is set aside.