N.K. Das, J.@mdashPetitioner was a bailor for one Prasanta Kumar Sinha who was an accused in a case u/s 420, Indian Penal Code. He stood as surety for Rs. 10,000/ - along with another Brajamohan Sinha who is dead. On 19-4-197-1 when the case was posted for trial, accused Prasanta Kumar Sinha was found absent and no application was filed by the bailors. As the case was ten years'' old and three PWs. were present, the learned Magistrate adjourned the case to 7-6-1974. The bail-bonds were forfeited and orders were passed to issue notice to the bailors to show cause why the amounts under the bail-bonds should not be realised. In accordance with that order, notices were issued to the sureties. But it was found that the other surety was already dead. The present Petitioner appeared and showed cause stating that he was producing the accused on all dates, but on that particular date as the accused was ill, he could not produce him in Court. It was contended by him that he did not deliberately become negligent in not producing the accused.
The learned Magistrate did not accept the explanation of the Petitioner and directed that distress warrant be issued for realisation of Rs. 5,000/ - from the Petitioner. As against the aforesaid order, the Petitioner came up in appeal before the Sessions Judge, Cuttack and the appeal has been dismissed.
2. It is contended by Mr. Patra, the learned Counsel for the Petitioner, that as no notice was-issued to the Petitioner before passing the order for forfeiture of the bail-bond, the entire proceeding is illegal and void. According to him, the Court should have issued to notice first before passing order for forfeiture of bail-bond; and second, before calling upon the bailor to show cause why he should not pay the amount.
3. Section 514, Code of Criminal Procedure (old) states as follows:
Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken xx xx 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.
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 any movable property belonging to such person or his estate if he be dead. xx xx
4. This section provides that first of all the Court is to be satisfied that the bailor has not produced the accused and the bail-bond should be forfeited. The Court shall record the grounds of such satisfaction and call upon the bailor to pay the penalty, or to show cause why the penalty should not be paid. Reliance is placed on
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.
While considering the case reported in
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.
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 held at the earlier stage that the bond has been forfeited.
5. It is clear from the aforesaid observations that the provisions of Section 514, Code of Criminal Procedure contemplate a notice to show cause why the penalty should, or should not, be paid after forfeiture of the bond. The said provisions do not contemplate a notice to show cause before passing orders for forfeiture of the bail-bond.
Mr. Patro places much reliance on Jagannath Mandhata v. State 34 (1968) C.L.T. 58. In that decision, the principles hid down in
6. The aforesaid decision of this Court was also considered in Harish Chandra Pradhan v. State 1974 (1) C.W.R. 556. It has been accepted in this decision that the spirit of the decision reported in Jagannath Mandhata v. State 34 (1968) C.L.T. 58 is to the effect that notice is necessary to be given to the bailor to show cause as to why the amount should not be recovered.
In Jagannath Rout v. State of Orissa 1974 C.L.R. 190, both the decisions reported in
7. There is yet another aspect of the matter. As I have already observed, the provisions of Section 514, Code of Criminal Procedure have clearly laid down that a notice to show cause is necessary at the second stage asking the bailor to show cause why he should not pay the penalty and it cannot be said that a notice to show cause has to be given before forfeiture of the bond basing on principles of natural justice.
8. In Union of India v. J.N. Sinha AIR 1951 S.C. 40, it has been held:
But if a statutory provision either specifically or by necessary implication excludes the application of and rules of natural justice then the Court cannot ignore the mandate of the legislature of the statutory authority and read into the concerned provision the principle of natural justice. Whether the exercise of a power conferred should be made in accordance with any (the principles of natural justice or not depends upon the express words of the provision conferring the power the nature of the power conferred, the purpose of which it is conferred and the effect of the exercise of the power.
Section 514, Code of Criminal Procedure expressly provides a notice only at the second stage when the bailor is called upon to show cause why he should not pay the penalty after forfeiture of the bail-bond. There being express provision in the second the rules of natural justice can be said to be applicable by necessary implication of that provision. Therefore, I hold that Section 514" Code of Criminal Procedure does not contemplate issue of a notice to show cause prior to forfeiture of the bail-bond.
9. It is contended on behalf of the Petitioner that the bail-bond was executed in favour of the Union Government and, as such, the breach of the condition cannot be enforced against the Petitioner. Reliance is placed on
10. In that case, as the bond was not executed either in favour of the Government of India or in favour of the State Government and as the bond was in favour of the King Emperor, it was held that the bond was not according to the provisions of Section 499, Code of Criminal Procedure read with Section 555. Code of Criminal Procedure and to the appropriate form appended to the schedule thereto, because, the amendment was that the bond should be in favour of the "Government".
11. In this case, the bond has been executed in favour of the Union Government. Moreover, this question was not mooted out at any stage by the Petitioner, nor the Petitioner has taken such a ground in his petition. Only during the course of argument this question was raised. In view of the aforesaid circumstances and the position of law, such a concession is not available to the Petitioner.
12. Mr. Patra further contends that the amount of penalty is very heavy and the Courts below have not taken into consideration the principles laid down in Budhinath Tad v. State of Ors. 42 (1976) C.L.T. 86. Certain considerations have been enumerated in that decision in fixing the quantum of penalty. Mr. Patra says that he would move the Court below for reconsideration of the quantum of penalty keeping in view the aforesaid decision. It is open to the Petitioner to canvass the question of penalty in the Court below.
13. In the result, the revision is dismissed subject to the direction that the Petitioner can canvass in the Court below about the quantum of penalty in view of the decision of this Court reported in Budhinath Tad v. State and Ors. 42 (1976) C.L.T. 86. It is open to the Petitioner to move the Court below for continuance of the attachment till the disposal of any petition: if filed by the Petitioner, for reduction of the quantum of penalty.
