Patna High Court
Bubai Manjhi And Ors. vs The State on 13 March, 1957
Equivalent citations: AIR1958PAT286, 1958CRILJ672, AIR 1958 PATNA 286
JUDGMENT Banerji, J.
1. This is an application against an order passed under Section 514 of the Code of Criminal Procedure forfeiting a sum of Rs. 100/- from the ad interim bond of each of the members of a proceeding under Section 107, Criminal Procedure-Code. The facts are as follows:
2. A proceeding under Section 107 of the Code of Criminal Procedure was started on 6-11-1954, and the petitioners were asked to execute ad interim bonds on 30-11-1954. The bonds were duly executed, and one of the terms of the same was that in case of any of the petitioners committed breach of peace or did any act leading to a breach of peace before the termination of the proceeding, a sum of Rs. 1,000/- for which the bond stood would be forfeited. On 22-11-1955, it is said, the petitioners harvested the paddy from the land, which was the subject matter of dispute, and on 23-11-1955, the police submitted a report of the petitioners' having harvested the paddy, although the proceeding had not terminated and on this report the learned Magistrate ordered a notice to issue for showing cause as to why the amount mentioned in the ad interim bonds should not be forfeited.
3. It appears from the record that although the learned Magistrate adjourned the matter front date to date, no show cause petition was filed by any of the petitioners, as a result of which the following order was passed:
"Dubai Manjhi, Nimai Manjhi, Durga Manjhi present, other members of the O. P. absent. No show cause has been filed by the members of the O. P. It appears that they have no cause to show. Rs. 100/- (One hundred) only from the ad interim bond of each of the members of the O. P. is forfeited; Issue D/W for realisation of the amount..."
4. It has been argued on behalf of the petitioners that the learned Magistrate has not carried out the express provisions of law as contained in Section 514 Criminal Procedure Code, and acted without any proof when he called on the petitioners in the proceeding to show cause why the bond. should not be forfeited. The learned Advocate has stressed on the words "proved to the satisfaction of the court" and "the court shall record the grounds of such proof" occurring in Section 514 (1) of the Code of Criminal Procedure. His argument is that a mere asking of the opposite party to show cause is not sufficient. The court was bound in law to have proof of acts of a party which would make them liable to forfeiture of their bonds. According to the Evidence Act a fact is said to be proved when after considering the mattears before it, the court either believes it to exist considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.
In this particular case, there was only the police report before the Magistrate and nothing else. There was no statement on oath, nor any document which can be characterised as evidence before him. The question, which has to be determined, is, therefore, whether the use of the words "whenever it is proved'' in Section 514 makes it incumbent on the Magistrate to take evidence in order to afford a foundation for his jurisdiction to call on the party to show cause and to declare his recognizance forfeited.
This question was replied in the affirmative in In re Hariram Birbhan, 11 Bom HCR 170 (A). Their Lordships held in that case that taking and recording of evidence were essential and when it had not been done, there was a failure of jurisdiction. In arriving at this decision, the remarks made by the Judges in Park Gate Iron Co. v. Goates, (1870) 5 C. P. 634 (BJ were referred to and followed. A similar case came up before a single Judge of this court in Kishan Narayan Singh v. Emperor, AIR 1922 Pat 242(O) Ross J., following the Bombay decision, held that before a person bound by a bond is called on to show why the amount would not be paid, there must be proof of the satisfaction of the court that the bond had been forfeited and further the court shall record the grounds of such proof, in this case the petitioners were not merely asked to show cause on a police report but the order of forfeiture was passed after the parties had examined witnesses. Even then that order was set aside.
There are two other cases of this Court, namely Zulmi Kahar v. Emperor, AIR 1929 Pat 643 (D) and Rajbansi Bhagait v. Emperor, AIR 1929 Pat 658 (E) in which the views taken by the Bombay High Court and by Ross J., in our High Court were accepted.
5. On these decisions, it cannot be said that the provisions of Section 514, Code of Criminal Procedure have been carried out by the learned Magistrate.
6. The next question which comes for determination, is whether the omission to take a proof and to record his reasons is a mere irregularity or illegality. In the Bombay High Court decision it was laid down that the provisions were express in character, and that if the same were not complied with, there was inherent lack of jurisdiction on the part of the Magistrate to issue an order asking the party to show cause. The same view was followed in the case reported in AIR 1922 Pat 242 (C) where there was no question of any prejudice at all, as the parties had opportunity to lead evidence on the point and to examine and cross-examine witnesses, after they had been directed to show cause. In view of these decisions the order of the learned Magistrate cannot be upheld. The same is set aside and if the amount has already been paid it is directed that that amount should be refunded to the petitioners forthwith.