Patna High Court
Tarni Yadav And Anr. vs The State on 30 March, 1961
Equivalent citations: AIR 1962 PATNA 431, ILR 40 PAT 398
JUDGMENT Sahai, J.
1. This case raises the question of interpretation of Section 514 of the Code of Criminal Procedure. The necessary lacts may be shortly stated. There was a proceeding under Section 107 of the Code of Criminal Procedure against one Upendra Yadav. He was released on bail, and the petitioners, who stood as his bailors, executed a bond of Rs. 500/- each for his appearance in court. One of the dates fixed in the case was the 28th December, 1959. Upendra submitted an application for time on that date on the ground that he was ill. He did not file any medical certificate with his application. The Magistrate disbelieved the allegation that he was ill, and rejected his application. He also proceeded to forfeit the bail bond, and, by the same order, issued notice to the petitioners to show cause. The petitioners showed cause on the 29th December, 1959. They also alleged that Upendra was ill, and they filed a medical certificate of Dr. Mahendra Prasad, dated the 28th December, 1959, in which the doctor stated that Upendra (torn) been under his treatment for lever and diarrhoea with effect from the 16th December, 1959. The learned Magistrate considered the certificate, and said with reference to it:
"I have reason to disbelieve it. O. P. Upendra Yadav persistently absented to appear in this case on several dates 7-9-59, 8-9-59 and onwards. M. C. was not filed on earlier dates such as 21-12-59, 23-12-59 and 28-12-59. The ground of illness does not appear to be genuine. The bailor and surety have failed to keep proper control upon Upendra Yadav".
In these words, he held the cause shown by the petitioners to be insufficient. He then ordered distress warrant to issue against them for realisation of the bail amounts. On appeal, the Sessions Judge has reduced the forfeited amount from Rs. 500/- each to Rs. 250/- each. This application for revision is directed against the learned Sessions Judge's order.
2. Appearing for the petitioners, Mr. Indra Bhanu Singh has argued that it was incumbent upon the Magistrate to hold an enquiry before he could forfeit the bond executed by the petitioners, and that his order is vitiated because he did not hold any such enquiry. On the other hand, the learned Standing Counsel has contended that all that was necessary for the Magistrate was to give an opportunity to the petitioners to show cause why the penalty should not be paid, and, since he has considered the cause shown and found it to be insufficient he has not "committed any illegality.
3. The relevant part of Section 514 reads:
"(I) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or, when the bond is for appearance before a Court, to the satisfaction of such court, that such bond has 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.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the moveable property belonging to such person or his estate if he be dead". It is manifest that these two sub-sections contemplate two stages. The first stage is for the court to satisfy itself that a bond has been forfeited. The word 'forfeited' has not been defined; but its plain meaning is that a condition imposed upon the executant of the bond and agreed to by him has been contravened. If the bond is for appearance of an accused person in court, the fact that he has absented himself is sufficient to constitute a breach of the condition and, therefore, forfeiture of the bond. If, on the other hand, the bond is for keeping the peace or being of good behaviour, the person, who alleges that the person bound under the bond has infringed the condition laid upon him, must furnish proof to the satisfaction of the court that there has been such infringement. There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. When the court is satisfied that a bond has been forfeited, it has to record the grounds of proof upon which it has come to that conclusion. Proof is thus undoubtedly necessary; but, in case of absence when the bond is for appearance, all that the court has to do is to refer to its own record as proving that there has been a forfeiture of the bond. It can say that a bond was executed for appearance of the accused, and that the accused did not appear on the date fixed. That completes the first stage, and the question whether the accused had any good or valid ground for his absence does not then arise for consideration.
4. It is to be noticed that there is nothing in Sub-section (1) of Section 514 which requires the Court to give notice to the executant of the bond to show cause against forfeiture before recording an order that the bond has been forfeited.
5. The second stage relates to realisation of the forfeited amount of the bond. The provision Is that, after the Court has come to the conclusion that the bond has been forfeited, it has to give two alternatives to the executant of the bond. It has to give him notice either to pay the penalty or to show cause why it should not be paid. It cannot enforce realisation of the penalty without giving such notice. If, on being served with such notice, the executant of the bond pays the penalty and does not show cause, that would be the end of the second stage, and no further proceeding is necessary. The executant of the bond may, however, take the alternative course, and, instead of paying the penalty, he may show cause why the penalty should not be paid. At this stage, the cause which he may show in case of a bond for appearance may be that the absence was not willful but it was due to certain justifiable reasons. When this course is adopted the court must consider the cause shown, if there are sufficient circumstances before the court, on the basis of which it can accept or reject the cause shown, it need not take any evidence.
When there are no such circumstances, it must give an opportunity to the person showing cause to prove by adducing evidence that the cause shown by him is correct. Thereafter, it has to come to a decision. If its decision is that the cause shown is correct and sufficient, the only order which it can pass is that the executant of the bond is not liable to pay the penalty. It is only if it comes to the conclusion that sufficient cause has not been shown that, in case of nonpayment of the penalty, it can issue distress warrant against the person concerned for realisation.
6. In Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185 the question which arose for consideration was whether notice had to be given to a surety to show cause why the penalty should not be paid. Their Lordships referred to the provision of Sub-sections (1) and (2) of Section 514, and held:
"This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. In the present case the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed".
Their Lordships have thus clearly laid down that it is incumbent upon a court to issue notice at what I have called the second stage to show cause "why the amount should not be paid". They have not said that the court must give notice to a surety in what I have called the first stage to show cause why the bond should not" be forfeited.
7. When the accused is absent on a date fixed in the case of a bond for his appearance in court, the only cause which can be shown by him or his surety against payment of the penalty is that there was good cause for his absence. There is no reason why this very point" should be considered twice; once before holding that the bond has been forfeited and again when the person who has executed the bond shows cause against payment of the penalty. In my opinion, therefore, mere absence is sufficient for the court to hold at the earlier stage that the bond has been forfeited.
8. I may now consider the decisions which have been brought to our notice. One such decision is that of Thakur Kishan Narayan Singh v. Emperor, AIR 1922 Pat 242. That case is dis- tinguishable because the bond executed in that case was to keep the peace, and, as I have already said, a bond for appearance stands on quite a different footing from a bond for other purposes. 9. In Zulmi Kahar v. Emperor, AIR 1929 Pat 643 the bond was for appearance of an accused person in a case under Section 406 of the Penal Code. The accused did not appear on the date fixed; but his mother tiled a petition for time, saying that her son was suffering from fever, and was unable to attend. The Magistrate issued notice to the surety to show cause why the bail bond should not be forfeited and the penalty realised. On the date fixed for showing cause, the surety did not appear to show cause, and thereafter the Magistrate directed a distress warrant to be issued against him for recovering the penalty. When the surety filed an application for revision in this Court, Fazl Ah", J. held;
"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 for 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 realised from him".
With great respect, I find it difficult to accept the view so expressed. His Lordship appears to have been of the view that the court should consider at what I have called the first stage itself whether the default in appearance made by the accused was deliberate or otherwise. It seems to me that that is not the stage when that question should be gone into. In fact, the surety's presence at that stage is not at all necessary because there is no provision for issuing notice to him before holding that the bond has been forfeited. Had it been necessary to issue notice to him at that stage, there would have been no necessity at all to give him another notice to show cause why the penalty should not be paid.
10. In Rajbansi Bhagat v. Emperor, AIR 1929 Pat 658 Macpherson, J. distinguished the decision in Zulmi Kahar v. Emperor (Supra) on the ground that, though the accused had failed to appear in that case, his mother had filed a petition, stating that her son was unable to attend. He observed;
"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 bond was for appearance in the case before him, and his Lordship stated:
"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........."
He then proceeded to consider whether the petitioners were liable to pay the penalty under the bond, and held, for the reasons given by him, that they had not become so liable. This decision supports, to some extent, the view which I have expressed.
11. Mr. Indra Bhanu Singh has referred to a decision of the Madhya Pradesh High Court in Ajudhya Prasad v. The State, 1953-54 Cri LJ 119: (AIR 1953 Madh-B 4). Shinde, C. J. has held in that case that section 514 provides for two stages the first in which the court has to come to a finding that the bond has been forfeited and has to record the grounds of proof of that fact; and the second in which the court is required to issue a notice to show cause why the penalty should not be realised. It appears that, before notice could issue in that case to pay the penalty or to show cause, the accused presented himself and paid the penalty. His Lordship has held that the Magistrate could not realise the penalty without issuing notice to the surety to pay the penalty or to show cause why it should not be paid. That raises a question which does not arise for our consideration in this case.
12. The last case which has to be considered is the decision of a Division Bench of the Calcutta High Court in Mon Mohan Chakravarti v. Emperor, AIR 1928 Cal 261. In that case, their Lordships have held that two stages have been provided for in section 514. Notice was given in the first stage itself to the surety to show cause why the bail bond should not be forfeited. No notice was, however, given to them at the second stage. Their Lordships held that it was desirable that the surety should be given another opportunity at the second stage. It seems to me, however, that notice has to be given to the surety at one stage only, and that is the second stage. If once be has been given notice to show cause and the cause shown by him has been found to be insufficient, I do not think that a second notice to him to show cause is required by law.
13. For the reasons which I have given above, I do not think that the learned Magistrate has committed any illegality in this case. His own record and the order sheet were before him and He could, therefore, certainly come to the conclusion on the 28th December, 1959, that the bond for appearance had been forfeited. He gave notice to the petitioners to show cause and when they showed cause on the 29th December, he considered the cause and came to the conclusion on a consideration of the facts and circumstances, which we consider valid, that the cause shown was unsatisfactory and could not be believed. It seems to us, therefore, that there is no illegality in the proceedings before him.
14. It has been brought to our notice that accused Upendra subsequently appeared in the case and the proceeding under Section 107 against him is still pending only because this application for revision has been pending in this court. In view of the fact that Upendra has appeared we think that a penalty of Rs. 50/- each will be quite sufficient. I would, therefore, allow this application in part, and reduce the amount forfeited to one of Rs. 50/- each against each of the two petitioners.
Anant Singh, J.
15. I agree.