Order.- This criminal revision petition arises out of the judgment dated 17th August, 1976 in Criminal Appeal No. 134 of 1975 on the file of the II Additional Sessions Judge, Bangalore, dismissing the appeal preferred by the revision petitioner and confirming the order dated 18th August, 1975 made in Criminal Miscellaneous No. 323 of 1975, by the Chief Metropolitan Magistrate, Bangalore City, directing the petitioner to pay a sum of Rs. 5,000 as penalty out of the forfeited surety bond amount of Rs. 15,000. 2. The facts of the case, stated briefly, are as under: The Central Excise, Bangalore, have filed a complaint against one Devichand and few others for violation of section 135 of the Customs Act. The revision petitioner Roopchand offered himself as surety to Devichand when he was arrested and produced before the Court and executed a surety bond for a sum of Rs. 15,000 on 25th February, 1970. The Central Excise filed a complaint against Devichand and others on 11th November, 1974 which was taken on file in C.C. No. 3072 of 1974. Summons was issued to Devichand and the other accused to appear before the Court on 20th December 1974. Fresh summons was ordered to be issued for their appearance on 20th January, 1975. On 20th January, 1975 the learned Additional Chief Metropolitan Magistrate, Bangalore City, forfeited the bond executed by the revision petitioner since Devichand did not appear on that day. A show cause notice was issued to the revision petitioner. The revision petitioner appeared in response to the show cause notice on 15th May, 1975 and took time to produce Devichand and the case was adjourned to 16th June, 1975. On 16th June, 1975, the Magistrate directed to register a separate miscellaneous case against the revision petitioner. Accordingly, a miscellaneous case was registered in Criminal Miscellaneous No. 323 of 1975. Thereafter, on hearing the revision petitioner, the Magistrate is passed the impugned order dated 18th August, 1975, directing the revision petitioner to pay a sum of Rs. 5,000 by way of penalty remitting the balance amount of Rs. 10,000 out of the forfeited bond amount of Rs. 15,000. The revision petitioner made an unsuccessful attempt to challenge the correctness of the said order in Criminal Appeal No. 134 of 1975 before the II Additional Sessions Judge, Bangalore. Hence, he has filed the present revision petition against the order of the appellate Court. 3. 10,000 out of the forfeited bond amount of Rs. 15,000. The revision petitioner made an unsuccessful attempt to challenge the correctness of the said order in Criminal Appeal No. 134 of 1975 before the II Additional Sessions Judge, Bangalore. Hence, he has filed the present revision petition against the order of the appellate Court. 3. Shri B.T. Chhabria, learned Advocate appearing for the revision petitioner, firstly contended that the surety bond executed by the revision petitioner cannot be legally enforced against him as no date has been mentioned in it for the appearance of the accused and as such the surety bond is invalid and unenforceable. I see little force in this contention. 4. It is seen from the records that the trial Magistrate has acted under the provisions of the Code of Criminal Procedure, 1898 (shortly called the ‘Code’) in taking the surety bond from the revision petitioner while releasing Devichand (accused) on bail. Section 499 of the Code deals with the bond of the accused and the sureties. It does not stipulate mentioning of the particular date on which the accused should be called upon to appear before the Court. What is contemplated therein while releasing the accused on bail conditioned by one or more sufficient sureties is that such accused person shall be directed to attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the Court. In the bond under reference, the accused was directed to attend the Court whenever called upon to do so next to answer the charge and to continue so to attend until otherwise directed. All that is required under the said bond is to call upon the accused to attend the Court on a particular date for the purpose mentioned therein. If a specific date is mentioned in the bond for the appearance of the accused, no further notice is necessary and if no specific date is mentioned in the bond for the appearance of the accused as in the instant case, and he is directed to appear whenever called upon to do so, a duty is cast upon the Court to issue him a notice mentioning the date on which he should attend the Court in terms of the bond executed by him. Non-mentioning of any particular date for the appearance of the accused in the bond executed, before releasing the accused on bail as required under section 499 of the Code, in my view, will not vitiate the bond. 5. Shri Chhabria has placed reliance in support of his contention on a ruling of the High Court of Punjab in Mohamed Idris Khan v. State1. It was a case arising under the provisions of Sea Customs Act, 1878 (shortly called the ‘Act’). The accused in that case was arrested under section 173 and produced before the Magistrate as required under section 174 of the Act. Section 175 of the Act empowers the Magistrate either to detain the accused or admit him to bail. It provides that when any accused person who is arrested under section 173 and produced before the Magistrate, such Magistrate may, if he thinks fit, either commit the accused to gaol or order him to be kept in the custody of the police for such time as is necessary to enable such Magistrate to communicate with the proper officers of Customs. The proviso to section 175 empowers the Magistrate to release the accused person who is committed to gaol or kept in the police custody on his giving security to his (Magistrate’s) satisfaction to appear at such time and place as he appoints. Interpreting the scope of section 175 and the proviso, it was observed in Mohd. Idris Khan’s Case1 that the Magistrate can release an offender on bail under the proviso only for a limited period and before a complaint is lodged against him by the Chief Customs Officer or any other officer of the Customs so authorised, and if the bail bond in which no specific date was mentioned for the accused to appear, is forfeited without serving a notice on him to so appear, it was held that the terms of the bail bond were defective and the accused had not, therefore, incurred any liability and so the surety naturally would not be liable for any penalty. 6. There is no provision in the Customs Act, 1962, empowering the Magistrate to release the accused on bail when they were produced before him for the limited period as provided in section 175 of the Act. 6. There is no provision in the Customs Act, 1962, empowering the Magistrate to release the accused on bail when they were produced before him for the limited period as provided in section 175 of the Act. No doubt section 104 (2) of the Customs Act, 1962 provides for the production of the accused arrested under sub-section (1) of section 104 before a Magistrate without unnecessary delay. Since there is no provision in the Customs Act similar to section 175 of the Act empowering the Magistrate to release the accused produced before him on bail, the power of the Magistrate to release the accused on bail is to be founded in the Code. That being so, the ruling relied upon by Shri Chhabria is not applicable to the facts of the case. 7. The second contention of Shri Chhabria is that before forfeiting the bond executed by the petitioner in favour of the Court of the Chief Metropolitan Magistrate, the accused for whom the petitioner offered surety should have been called upon to appear in Court as per the terms of the bond. If the accused had failed to appear in pursuance of such a notice, then only the bond executed by the petitioner would have been forfeited since the surety bond is a contract and is executed for the purpose of ensuring the presence of the accused in the Court of the Chief Metropolitan Magistrate, for which the petitioner has given an undertaking under the bond. In support of this contention, he has cited a few rulings. 8. In The State of Maharashtra v. Dadamiya Babumiya Sheikh1, it is held that a surety bond is contract executed for the purpose of ensuring the presence of the accused concerned in the Court in which he is standing his trial at the hearing of the case. 9. In Manindra Kumar Majumdar v. Emperor2, it is held that where the form of bond executed by a surety is an undertaking to produce the accused in the particular Court on being called upon to do so, unless the surety is called upon by a notice to produce the accused, it cannot be said that the surety failed to perform the conditions of the bond. In the absence of such a notice to the surety, the bond executed by him cannot be forfeited. 10. In the absence of such a notice to the surety, the bond executed by him cannot be forfeited. 10. In State v. Hebalkhani Meghrajji3, it is observed that the question as to whether the accused or the sureties have incurred a forfeiture of the bond must depend upon the terms of the bond. Where the bond contains an undertaking for appearance before the Court until the decision of the case and as directed by the Court, it is necessary that a date for his appearance should be specified and notified to him before any breach of the undertaking can arise. If the sureties have undertaken that the accused would attend as directed by the Court and in default they are to forfeit the amount of the bond and the bond does not require them to produce the accused on the date of the next hearing of the case, any intimation to them to keep the accused present on such date will not dispense with the necessity of giving intimation to the accused himself. In the absence of such a notice, neither the liability of the accused nor that of the sureties would arise. 11. The learned High Court Government Pleader appearing for the State contended that section 514 of the Code does not contemplate issue of a notice to the surety before the bond executed by him is forfeited. What is contemplated under section 514 of the Code is that the concerned Magistrate or the Judge should find that it is proved to his satisfaction that the bond had been forfeited and record the grounds of such proof and after finding that the bond had been forfeited, he is required to issue a notice to the concerned surety intimating him that the bond had been forfeited and call upon him to pay the penalty thereof or to show cause as to why it should not be paid. Two rulings on this aspect were cited before me. 12. Two rulings on this aspect were cited before me. 12. The first ruling is the decision of the Supreme Court in Ghulam Mehdi v. State of Rajasthan4, wherein it is observed that section 514 of the Code would show that before a surety would become liable to pay the amount of the bond forfeited, it is necessary to give him a notice why the amount should not be paid and if be 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, then the proceedings could not be said to be in accordance with law. 13. The next decision cited before me was the decision of this Court in Appanna v. State of Mysore.5The relevant portion is found at page 541. It reads thus: "A reading of section 514(1) and (2) of the Code makes it plain that the law does not contemplate issue of a notice to a surety before the bond executed by such surety is forfeited. All that is required to be done by the concerned Magistrate or the Judge is that he should find that it is proved to his satisfaction that the bond had been forfeited and record the grounds of such proof. After finding that a bond had been forfeited, he is required to issue a notice to the concerned surety intimating him that the bond had been forfeited and calling upon him to pay the penalty thereof or to show cause as to why it should not be paid. Form 45 Schedule V of the Code is the form in which such notice is required to be issued. It is only thereafter that the Judge or the Magistrate would be competent to levy the penalty and proceed to recover the same by issuing a warrant for attachment etc., if sufficient cause is not shown and the penalty is not paid." 14. It is only thereafter that the Judge or the Magistrate would be competent to levy the penalty and proceed to recover the same by issuing a warrant for attachment etc., if sufficient cause is not shown and the penalty is not paid." 14. In both the above decisions, the scope of section 514 of the Code was considered and laid down that before a surety becomes liable to pay the amount of the bond, it is necessary to give notice to him calling upon him to pay the penalty under the forfeited bond or to show cause why it should not be paid and if he failed to pay the penalty or show sufficient cause, then the Judge or the Magistrate would be competent to levy penalty and to proceed to recover the same by issuing warrant for attachment etc. However, the question whether a notice to the surety is necessary before deciding that the surety had committed default of the terms of the bond incurring the liability of forfeiture of the bond was not considered in the above decisions. This was so because as I stated earlier, the scope of section 514 of the Code came up for consideration in both the above decisions which would come into play only after the bond had been forfeited. This is clear from the wordings of section 514 of the Code. The head note of the section 514 is "procedure on forfeiture of bond". Sub-section (1) of section 514 stipulates that whenever it is proved to the satisfaction of the Court by which the bond under the Code has been taken, that such bond has been forfeited, then 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. This would clearly indicate that section 514 of the Code would come into play at the stage where it is proved to the satisfaction of the Court that the bond has been forfeited. Whether a person bound by a bond has committed default of any of the terms of the bond thereby incurring the liability of forfeiture of the bond is a question to be decided at a stage prior to the application of section 514 of the Code. Whether a person bound by a bond has committed default of any of the terms of the bond thereby incurring the liability of forfeiture of the bond is a question to be decided at a stage prior to the application of section 514 of the Code. That being the position, the decisions relied on by the learned High Court Government Pleader would not help him to meet the objection raised by the learned Advocate for the petitioner. 15. It seems to me the correct position in law whether a bond executed by an accused or his surety is forfeited or not, depends upon the terms of the particular bond since the bond is a contract under which the accused or his surety has bound himself to the Court in favour of which the bond is executed. If the terms of the bond require that the accused should be called upon to appear in Court on a particular date and the sureties have undertaken that the accused would attend as directed by the Court and in default they are to forfeit the amount of the bond, then, in the absence of a notice to the accused calling upon him to appear on a particular date, it cannot be said that the surety had committed any default so as to make him liable to forfeit the bond. If, on the other had, the terms of the bond executed by the surety is an undertaking to produce the accused in Court on being called upon him (surety) to do so, in the absence of any such notice calling upon the surety produce the accused, it cannot be said that the surety has committed any default entailing the forfeiture of the bond. The third type of case may arise in this way. Suppose in the bond executed by the accused, it is specifically stated that he should appear on a particular date in the Court in favour of which the bond is executed and the surety has undertaken that the accused would attend as directed by the Court, then the moment the accused failed to appear in the Court as undertaken by him would result in the forfeiture of the bond executed by the surety without any notice to him. Thus it is seen whether a notice is required either to the accused or to the surety or notice is required to either of them for incurring forfeiture of the bond would depend upon the terms of the bond in question. 16. In the light of the position of law discussed above I shall now proceed to consider whether the forfeiture of the bond executed by the petitioner without the service of the notice to the accused Devichand to appear in the Court is improper and illegal. The answer to this contention would depend upon the terms of the bond under reference. 17. The accused Devichand executed the bond on 25th February, 1970 binding himself to attend in the Court of the City Magistrate, Bangalore in whose favour the bond was executed, whenever called upon to do so next to answer to the charge and continue so to attend until otherwise directed by the Court. The petitioner Roopchand who is the surety for the accused Devichand has given an undertaking that the accused would attend whenever called upon to do so next to answer to the charge on which he has been arrested and shall continue so to attend until otherwise directed by the Court and in case of his making default therein, he would bind himself in a sum of Rs. 15,000. 18. "The terms of the bond would require a notice to the accused Devichand from the Court calling upon him to attend in the Court on a particular day to answer the charge and continue so to attend until otherwise directed by the Court. Unless such a notice was served upon the accused Devichand and his failure so to attend, the petitioner would not incur the liability of forfeiture of his bond. Admittedly no notice was served upon the accused Devichand to attend the Court on a particular day and continue so to attend until otherwise directed. This is clear from the certified copy of the order-sheet produced in the case. The complaint was filed against Devichand and others on 11th November, 1974. Summons was directed to be issued to the accused Devichand and others by 20th December, 1974. On 20th December, 1974 fresh summons was ordered returnable by 20th January, 1975. On 20th January, 1975, the bonds executed by the 1st accused Devichand and his surety the petitioner herein were forfeited. Summons was directed to be issued to the accused Devichand and others by 20th December, 1974. On 20th December, 1974 fresh summons was ordered returnable by 20th January, 1975. On 20th January, 1975, the bonds executed by the 1st accused Devichand and his surety the petitioner herein were forfeited. Show-cause notice as required under section 514 of the Code was ordered to be issued to the petitioner. Non-bailable warrant was also issued against Devichand and others who were absent. Thus it is seen that the bond executed by the petitioner was forfeited before the summons was served on the accused Devichand for his appearance in Court. If the summons was not served on the accused Devichand, in the ordinary course, steps should have been taken to give notice to him for his appearance under the provisions of the Code including a proclamation. It is imperative as per the terms of the bond that before holding the petitioner liable under the bond, the accused Devichand should have been notified the date of his appearance in Court as per the terms of the bond executed by him (Devichand). Without serving a notice on the accused Devichand calling upon him to appear in Court on a particular day, forfeiture of the bond executed by the petitioner is in clear violation of the undertaking given by him; as the undertaking given by him was that the accused would attend the Court whenever called upon to do so and in case of his failure, he would bound himself in a sum of Rs. 15,000. In that view of the matter, the impugned order directing the petitioner to pay the penalty of Rs. 5,000 cannot be sustained. 19. In the result, for the reasons aforesaid, the revision petition is allowed and the orders of the Courts below are hereby set aside. 20. If the petitioner Roopchand has already paid the penalty amount of Rs. 5,000, the same shall be refunded to him.