Bhola Babu Salian v. State of Maharastra — 1983 DIGILAW 113 (BOM)

JUDGMENT Kanade, J. - The short question involved in this revision application is as to whether without an order of forfeiture of a bond executed by a surety the issuance of notice of show cause will be without jurisdiction. The said question arises on the following facts of this case. 2. The petitioner, Bhoja Babu Salian, stood surety in the sum of Rs. 15.000/- for accused, Mohamed Zamil Mohamed A. Chaudhry, in case No. 341/PN/82 in the Court of the Additional Chief Metropolitan Magistrate, 9th Court Bandra. Bombay. The said surety bond was executed by the petitioner on June 10, 1982. It was for appearance of the accused in the said case. The accused failed to appear in the Court on June 30, 1982. On that day the, learned Additional Chief Metropolitan Magistrate passed the following order: "Accused Nos. 1 and 3 produced. Accused No.2 absent. Issue non-bailable warrant against accused No.2 and notice to surety. R/f (that is returnable) 6.7.1982." (bracketed portion supplied.) 3. In pursuance of the aforesaid order a notice to the surety was sent dated July 1, 1982 which was served on the petitioner. On the next date of hearing that is, on July 6, 1982 it is stated in the Roznamcha as follows: "Accused Nos. 1 and 3 in custody. Warrant against accused No.2 returned unexecuted. The case of accused No.2 is separated. A separate charge is framed against accused Nos. 1 and 3 under sections 467, 457, 458, 461, 472 and 419 of the Indian Penal Code. Both accused pleaded not guilty. Issue summonses to prosecution witnesses. The notice issued to the petitioner states as follows: "Whereas on 10th day of June 1982 you/be came surety for one Mohamed Zameer Mohammed Aktar Chaudhry (that is, the accused) of Bombay that he should appear before this Court on 30th day of June 1982 (that is, on the date of hearing) and should continue to attend until otherwise directed by the Court and bound yourself in default thereof to forfeit the sum of Rs. 15,000/-. And whereas the said accused has failed to appear before this Court on 30th day of June 1982 and by reason of the said default you have forfeited the aforesaid sum of Rs. 15,000/-. 15,000/-. And whereas the said accused has failed to appear before this Court on 30th day of June 1982 and by reason of the said default you have forfeited the aforesaid sum of Rs. 15,000/-. You are hereby required to appear before this Court on 6th day of July 1982 at 11 A.M. (S.T.) and show cause, if any, why the payment of Rs. 15,000/- should not be enforced against you". 4. In pursuance of the said notice the petitioner appeared before the Court on July 6, 1982. On that day the learned Additional Chief Metropolitan Magistrate heard the advocate for the petitioner and passed the following order: "Surety with advocate Singh. Surety was noticed to show cause why the order of forfeiture should not be enforced against him for failure of the accused to attend in the Court on 30.6.1982. Surety has filed an application praying for time to produce the accused. The application does not show any reason for the absence of the accused on 30.6.1982. As the surety has not shown any cause, the bail bond is forfeited. However, I shall grant time to produce the accused by the next date. Adjd. to 20.7. 1982." The next day, that is July 20, 1982, the surety (that is the petitioner) and this Counsel were both absent, and the learned Additional Chief Metropolitan Magistrate directed to issue a distress warrant for Rs. 15,000/- against the surety. 5. Feeling aggrieved by the said order of issuing a distress warrant against him, the petitioner filed an appeal to the Court of Sessions for Greater Bombay, being Criminal Appeal No. 362 of 1982. The learned Additional Sessions Judge, Greater Bombay, dismissed the appeal, holding that there was no illegality in the order passed by the learned Additional Chief Metropolitan Magistrate. It is against this order the present revision application has been filed. 6. Sri Gyani, learned Counsel appearing in support of this petition, submitted that in the absence of an order of forfeiture the issuance of a show cause notice against the petitioner is without jurisdiction. It is argued that in the first instance there was no order forfeiture at all, but a show cause notice is issued on July 1, 1982 and thereafter an order of forfeiture has been passed by the learned Additional Chief Metropolitan Magistrate on July 6, 1982. It is argued that in the first instance there was no order forfeiture at all, but a show cause notice is issued on July 1, 1982 and thereafter an order of forfeiture has been passed by the learned Additional Chief Metropolitan Magistrate on July 6, 1982. According to Shri Gyani, the procedure followed by the learned Additional Sessions Judge is contrary to the provisions of section 446 of the Code of Criminal Procedure 1973. In support of his contention a number of authorities have been relied upon by learned Counsel. The first of them is Udai Raj and another v. The State1. The case is decided by a Single Judge of the Allahabad High Court it is observed that: "It is irregular to pass a single order, forfeiting a surety bond, and directing its amount to be realized as penalty. According to section 514 two steps are essential; (1) an order has to be passed forfeiting the bonds and (2) notice has to be served on the sureties to show cause why the amount of the bond be not realized from them by way of penalty." The contention reused in the said case was that the order of the learned Sessions Judge was unsustainable in law inasmuch as he had given opportunity to the applicants to show cause against the forfeiture of their bonds, but did not provide them an opportunity to show cause as to why the amount be not realized from them by way of penalty. It is on this contention the learned Single Judge of the Allahabad High Court held that under Section 514 of the Code of Criminal Procedure, 1898, twofold requirement was necessary. 7. The second case, very strongly relied upon by Shri Gyani, is of the Himachal Pradesh High Court, namely, Dhanvir and others v. State and other2. In the said case it is observed that: "A perusal of section 514 will make it abundantly clear that the Court has to be satisfied in the first instance that a bond for appearance was taken and that the said bond has been forfeited for which it shall record the grounds. The order as to forfeiture of bond, which is upon grounds to be recorded to the satisfaction of the Court is almost automatic no sooner the condition of the bond is disregarded and the persons fail to appear before the Court. The order as to forfeiture of bond, which is upon grounds to be recorded to the satisfaction of the Court is almost automatic no sooner the condition of the bond is disregarded and the persons fail to appear before the Court. It is only after such an order of forfeiture is made by the Court that a notice to show cause is to be issued to the surety either to pay the penalty or the show a sufficient cause why the penalty be not paid. Thereafter the Court has to consider the grounds made by the surety in support of his case and after considering the ease on merits, if the Court is dissatisfied with the reasons shown, an order is to be made for the realization of the penalty. In the instant case this procedure has not been followed by the learned Magistrate." It. is further observed in the said case that under section 514 two steps are essential; (i) an order has to be passed forfeiting the bond, and (ii) notice has to be served on the surely show cause why the amount be not realized from him by way of penalty. 8. In fairness to this Court, Sri Gyani also pointed out the decision of the Supreme Court in Gulam Mehdi v. State of Rajasthan3. The case is not relevant for decision of the instant case. It is observed in the case that section 514 of the Code of Criminal Procedure, 1898, shows that before 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 in the absence or such notice the proceeding cannot be said to be in accordance with law and should, therefore, be quashed. 9. There is a little change in section 446 of the Code of Criminal Procedure, 1973, but the important provision remains the same. The question involved is as to whether it is necessary to pass an order of forfeiture in a case where the surety has executed a bond to produce the accused person on each of the charge of hearing. There is a little change in section 446 of the Code of Criminal Procedure, 1973, but the important provision remains the same. The question involved is as to whether it is necessary to pass an order of forfeiture in a case where the surety has executed a bond to produce the accused person on each of the charge of hearing. The bond, which is at page 36 of the record of the original case, states that the accused has bound himself to see that the accused appears in the Court of the learned Additional Chief Metropolitan Magistrate on June l5, 1982 next, to answer to the said charge and to continue so to attend until otherwise directed by the Court, and in case of making default herein, the accused bound himself to forfeit to Government the sum of Rs. 15,000/-. Now in the bond itself the forfeiture is mentioned if breach of the condition of the bond is made. Admittedly the accused was absent on June 30, 1982. On that day the Court has passed an order which has been reproduced hereinabove. The learned Additional Chief Metropolitan Magistrate ought to have mentioned that the bond "as forfeited and then ought to have issued a notice to the petitioner-surety. What bas been done by the learned Additional Chief Metropolitan Magistrate is that a bailable warrant is issued against the accused and a notice to the petitioner surety. A notice to the surety cannot be issued unless the order of forfeiture is passed. Impliedly, the order of forfeiture is there. Without passing an order of forfeiture there was no cause to issue a notice to the surety. Shri Gyani, in fairness to this Court, pointed out that the learned Additional Chief Metropolitan Magistrate meant that the bond was forfeited, and issued notice to the surety. In fact, such an order of forfeiture has not been passed, It is then the question arises whether the order of issuing a notice to the surety is as a result of a forfeiture of the bond and whether that notice was a notice in compliance with the provisions of section 446 of the Code of Criminal Procedure, 1973. In fact such a notice was issued on July 1, 1982, which clearly indicates that the order of forfeiture has been passed and a notice was issued to show cause why the amount of Rs. In fact such a notice was issued on July 1, 1982, which clearly indicates that the order of forfeiture has been passed and a notice was issued to show cause why the amount of Rs. 15,000/- should not be recovered by way of a distress warrant. On further date, that is, on July 6, 1982, the learned Additional Chief Metropolitan Magistrate had stated that the bond was forfeited and the distress warrant was to the issued. Shri Gyani contended that actually the forfeiture of a bond is ordered by the learned Additional Chief Metropolitan Magistrate on July 6, 1982 and thereafter there was no show cause notice issued to the petitioner and, therefore, the procedure followed by the learned Additional Chief Metropolitan Magistrate is erroneous in law. The order passed by the learned Additional Chief Metropolitan Magistrate are not happily worded. It appears that he has passed some mechanical orders. No order as regards forfeiture is passed by him. However, a notice is issued, and the petitioner having appeared before him further time is given to him to produce the accused in the Court, and ultimately a distress warrant is ordered to be issued. Notwithstanding the exact order that has been passed by the learned Additional Chief Metropolitan Magistrate, it has to be seen as to whether the requirements of law namely, the provisions of section 440, have been complied with or not. 10. From the record I am satisfied that the learned Additional Chief Metropolitan Magistrate is deemed to have passed an order of forfeiture on June 30, 1982. The question is as to whether he was satisfied that there is breach of a condition of the bond on that day and whether there was sufficient material before him to be satisfied that there was breach of a condition of the bond. The bond is admittedly for appearance of the accused at the date of hearing. Admittedly the accused No 2 was not present in the Court on the date of hearing, and, therefore, the learned Additional Chief Metropolitan Magistrate issued a bailable warrant against the accused No.2. The said fact was sufficient to satisfy the learned Additional Chief Metropolitan Magistrate in holding that there was breach of a condition of the bond. Admittedly the accused No 2 was not present in the Court on the date of hearing, and, therefore, the learned Additional Chief Metropolitan Magistrate issued a bailable warrant against the accused No.2. The said fact was sufficient to satisfy the learned Additional Chief Metropolitan Magistrate in holding that there was breach of a condition of the bond. If the Court was satisfied on the proof, then the forfeiture is automatic by virtue of the contents of the bond itself, and it is necessary to issue a notice to the surety to show cause as to why the amount contained in the bond should not be recovered from him. That order is also passed by the learned Additional Chief Metropolitan Magistrate on July 6, 1982. In my view, there is full compliance of the provisions of section 446 of the Code of Criminal Procedure, 1973, and there is no error of law in the order passed by the learned Additional Chief Metropolitan Magistrate. It is therefore, no interference is called for in the revision application. 11. In the result, the criminal revision application fails and the same is dismissed and the rule is discharged. Since the petitioner has not appeared before the Court of the learned Chief Metropolitan Magistrate, 9th Court, Bandra Bombay to show cause in pursuance of the notice issued to him, he shall be at liberty to appear before the said Court and show cause as to why a distress warrant should not be issued against him. The learned Additional Chief Metropolitan Magistrate shall give an opportunity to the petitioner to reply and adduce evidence, if any, in response to the show cause notice served on the petitioner by the Court. Revision dismissed. 1. 1966(2) Cri. L.J. 706 2. 1975 Cri. L.J. 1347. 3. A.I.R. 1960 S.C 1185.