KAPOOR RAJA v. STATE OF KERALA — 1972 DIGILAW 291 (KER)

Judgment :- 1. This criminal revision petition arising out of an order passed by the Executive First Class Magistrate, Quilon, forfeiting the bonds executed by the revision petitioners under S.117 (3) of the Code of Criminal Procedure and calling upon them to execute fresh bonds, has been placed before us on reference by Khalid, J. who found it difficult to agree with the ratio in C. V. Anandan Master & Others v. State of Kerala (1970 KLT. 778). 2. The revision petitioners along with some others were directed by the Executive First Class Magistrate to execute interim bonds under S 117 (3) Crl. P. C, binding themselves for Rs. 1000/-each with two solvent sureties, each for like sums, to keep peace until the proceedings already initiated against them were concluded. The bonds were duly executed on 811 1971. On 3-2-1972, the Sub Inspector of Police filed a report before the Executive First Class Magistrate stating that the revision petitioners bad, along with certain others, involved themselves in a crime registered under S.395 IPC., that he was satisfied that they were likely to commit further breach of the peace disturbing public tranquillity, and that it was necessary to cancel the interim bonds executed by them. The Sub Inspector of Police was examined on oath in the presence of the revision petitioners. It was deposed by the Sub Inspector that the revision petitioners were Involved in the crime, that he was satisfied that they were frequently involving themselves in crimes causing breach of peace in the locality and that the interim bonds executed by them were to be cancelled. The Sub Inspector was cross-examined by the counsel for the revision petitioners. The Executive First Class Magistrate had also perused the case diary of the crime in question. On the ground that there has been a breach of the conditions of the bond, the Executive First Class Magistrate passed the impugned order, the material portion of which reads as follows: "From the evidence placed before me and after hearing the advocate for the above counter-petitioners, I am satisfied that by their above actions which have not been denied by them or rebutted in evidence before me, the above counter-petitioners have breached the conditions of the bonds to keep the peace executed by them and their sureties as laid down under S.121 Cr. p. C. Accordingly; I; Shri. U. Jayanarayanan; Executive First Class Magistrate; Quilon hereby order under S.514(1) Cr. P. C. that the bonds executed by the above counter petitioners and their sureties stand forfeited to Government and the counter petitioners are hereby asked to pay an amount of Rs. 1000/- each being penalty for having breached the conditions of the bond. The counter petitioners are also hereby asked to execute fresh bonds to keep peace for Rs, 1000/- each with two solvent sureties for like amounts as per powers vested in me under S.514(A) Cr. P. C. They are also informed that if the fresh bonds with the sureties are not executed before 25 21972 further action for default under the original orders dated 23 7 70 and 9101971 be proceeded with." 3. Sri. M. N. Sukumaran Nair, the learned counsel for the revision petitioners, has urged three points before "us: (1) the Magistrate did not carry out the express provisions of law as contained in S.514 Crl. P. C., in as much as be had acted without any proof when be passed the impugned order forfeiting the bonds; (2) assuming, without conceding, that the order, in so far as it relates to the forfeiture of the bonds, is valid, the Executive First Class Magistrate acted illegally in directing the petitioners to pay the penalty for the alleged breach of the conditions of the bonds without giving the petitioners notice to show cause why penalty should not be paid by them; and (3) the direction, purported to be under S.514(A) Crl. C., to execute fresh bonds has no legal basis and cannot be sustained. 4. Sub-sections (1) and (2) of S.514 Crl. P. C. (with which alone we are concerned, with reference to point Nos.1 and 2 raised by the learned counsel) read as follows: "514. (1) 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 movable property belonging to such person or his estate if he be dead." 5. We may at once note the distinction between a bond for appearance before a court on the one hand and a bond for keeping the peace or for good behaviour on the other. In the case of a bond for appearance before a court, the cause for forfeiture thereof arises immediately on the failure on the part of the person bound by the bond to appear in court at the appointed time or on the appointed day, as no further proof regarding the breach of the conditions is called for. In the case of a bond for keeping the peace or for good behaviour, the position is different for obvious reasons; proof becomes necessary for the Magistrate to satisfy himself that there has been breach of the conditions of the bond before an order forfeiting the bond could be passed. 6. The learned counsel appearing for the revision petitioners emphasize the expressions "proved to the satisfaction of the Court" and "the Court shall record the grounds of such proof" occurring in sub-s. (1) of S.514 of the Code. A fact could be said to be proved only when its existence is proved according to the provisions contained in the Evidence Act. It, therefore, appears to our mind that the satisfaction based on proof contemplated by sub-s. (1) of S 514 is not mere subjective satisfaction. The Magistrate cannot also allow the satisfaction required to be reached by him by a judicial process, to be substituted by prima facie satisfaction of someone else, like the Sub Inspector in the present case. 7. Forfeiture of a bond is a matter seriously affecting the liberty of a person bound by it. If cancellation or forfeiture of a bond could take place on the sole basis of a report filed by the Sub-Inspector, there may arise, at times, if not always, occasions for the abuse of the proceedings, as any interested person can file a complaint and make it appear that the person bound by the bond had got himself involved in a crime. Generally the investigating officer may cot have any direct knowledge about the overt acts attributed to the accused. The veracity of the statements given by the complainant and the witnesses has to be tested by cross-examination. This cannot be achieved by the examination of the police officer who filed the report, even if persons who are likely to be adversely affected are given the right to cross-examine. The mandatory provision directing the Magistrate "to record the grounds of proof" has been incorporated in the section by way of abundant caution against innocent persons being harassed by unscrupulous and interested persons. Prudence dictates that, to conform. to the spirit of the provisions contained in the sub-section, the Magistrate should insist on better proof without resting content with the report of the Police officer or his evidence based on hearsay information, when it is a question of forfeiture of a bond. The examination of at least one person who had direct knowledge about the alleged involvement in the crime of the person whose bond is sought to be forfeited would tend to minimise the chances for abuse of process by interested persons. Of course, the standard of proof required in proceedings like this may not necessarily be equal to that required in a case for conviction of an accused. In appropriate cases even affidavits by persons having direct knowledge about the incident may serve the purpose, provided the persons swearing to such affidavits would be made available for cross-examination if the correctness of the averments is disputed by the persons against whom such affidavits are to be used. To dispense with such proof absolutely and placing reliance solely on the police report or the evidence of the police officer, who claims to have no direct knowledge about the actual involvement of the accused, would lead to ackward situation and miscarriage of justice, particularly in a case which ultimately ends in discharge or acquittal. In the present case, the Magistrate had before him no legal evidence given by any person who claimed to have direct knowledge about any illegal act attributed to the persons bound by the bond, and in that view the forfeiture of the bond cannot be upheld. 8. In C. V. Anandan Master & Others v. State of Kerala (1970 KLT. In the present case, the Magistrate had before him no legal evidence given by any person who claimed to have direct knowledge about any illegal act attributed to the persons bound by the bond, and in that view the forfeiture of the bond cannot be upheld. 8. In C. V. Anandan Master & Others v. State of Kerala (1970 KLT. 778) Moidu J., on the facts and circumstances of the case, found that "there had been no illegality or irregularity in the order passed in the instant case." The need for recording a finding with respect to the breach of the conditions of the bond has, however, been emphasized in the judgment. Para.8 of the judgment concludes with the following observation: "I may, however, point out that the attention of Executive First Class Magistrates in general may be invited to the necessity to record a finding if the bond to be forfeited is in respect of the provision of S.107 Cr. P.C. holding clearly that there occurred a breach of the peace for the band to be forfeited and that the breach of the peace was due to some specific activity of the executant of the bond." The standard of proof and the material to be placed before the Magistrate to satisfy himself may differ from case to case. It is not for us to go into the question as to what was the material that was placed before the court in the case referred to above. There cannot be any hard and fast rule regarding the mode of proof required in a case like the one in our hand, and all that we have indicated is only a broad outline, the emphasis being that the court should take care to see that the grounds of proof for forfeiture have to be recorded without resting content with prima facie satisfaction, not supported by legal evidence, of the alleged breach of conditions of the bond. 9. We also feel persuaded to accept the argument of the counsel for the revision petitioners in support of his second contention. 9. We also feel persuaded to accept the argument of the counsel for the revision petitioners in support of his second contention. The expressions "may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid" towards the end of sub-section (1) and "if sufficient cause is not shown and the penalty is not paid , at the beginning of sub-section (2) of S.514 of the Code are of great significance. It is fairly clear from the wording of the sub-sections that an option either to pay the penalty or 10 show cause why it should not be paid has to be given to the person whose bond is forfeited, and it is only where the person bound by the bond fails to show cause not to pay the penalty, and the penalty is not paid, that the court can proceed with steps for recovery of the amount. This is also the view expressed by the Supreme Court in Ghulam Mehdi v. State of Rajasthan (AIR. 1960 SC. 1185), wherein Kapur J. has held as follows: S. 514 Cr. P.C. 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-When no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed." On this point Moidu J. does not appear to have taken a different view in C. V. Anandan Master & Others v. State of Kerala (1970 KLT. 778). Para.8 of the judgment in that case begins as follows: "The learned counsel has drawn my attention to a decision reported in Thakur Kishan Narayan Singh and others v. Emperor, AIR. 1922 Patna 242. That was a case where the Magistrate forfeited the bond before the executants of the bond were called upon to show cause why the amount should not be paid. That order of the Magistrate was in violation of the provisions of S.514(1) Cr. P.C. That case has no application to the facts of the present case.", 10. 1922 Patna 242. That was a case where the Magistrate forfeited the bond before the executants of the bond were called upon to show cause why the amount should not be paid. That order of the Magistrate was in violation of the provisions of S.514(1) Cr. P.C. That case has no application to the facts of the present case.", 10. The learned State Prosecutor has submitted that the dictum laid down in the Supreme Court case with respect to the procedure for recovery of the amount of the bond forfeited in the case of a surety cannot be applied to a case like this where the parties themselves are the persons who are ordered to pay penalty. We find no merit in this contention. There is no reason why the position of the sureties in this regard should be distinguished from that of the parties. Moreover, S.514, in terms, applies to all kinds of bonds executed or taken under the Code of Criminal Procedure. 11. In the light of the foregoing discussion, we hold that the impugned order in so far as it relates to the forfeiture of the bonds and for recovery of the penalty cannot be sustained. It follows that the direction to execute a fresh bond as directed by the Executive First Class Magistrate has also to be held invalid. Therefore, the third objection raised by the learned counsel for the revision petitioners also has to be upheld. 12. The learned State Prosecutor has requested that.in the circumstances of the case, the matter may be remanded to the Executive First Class Magistrate, so that the matter may be considered afresh in the light of the guidelines given by this Court in this order. It is now more than two years since the proceedings under S.107 of the Code were initiated, and at this distance of time we do not find any justification for a remand. In the result, the revision is allowed and the impugned order of the Executive First Class Magistrate is set aside.