STATE OF MAHARASHTRA Vs. DADAMIYA BABUMIYA SHEIKH

JUDGEMENT

(1.) These two appeals are by special leave from the judgment of the Bombay High Court dated 11th August, 1967 allowing the criminal revision applications of two sureties and setting aside the order of the Presidency Magistrate forfeiting their bonds.

(2.) On March 2, 1964 one Abdul Wahab Ibrahim, who was accused of having committed certain offences under the Customs Act was produced before the Court of the Chief Presidency Magistrate for the purpose of securing his remand. The Chief Presidency Magistrate released him on bail on his executing a bond for a sum of Rs. 2 lakhs with two sureties. The two respondents in this Court Laxman Bania and Dadamiya Babumiya Sheokh stood sureties, the former in the sum of Rs. 50,000/- and the latter in the sum of Rs. 1,50,000/-. The bonds in both the cases were in identical terms. The sureties undertook that he accused would appear before the Court of the Chief Presidency Magistrate on March 12, 1964 or on such other dates as the Court may direct. On March 12, 1964 the accused appeared in the Court of the Chief Presidency Magistrate when the period of bail was extended to 16th April, 1964. According to the direction of the Court the accused Abdul Wahab Ibrahim was to appear in the Court of the chief Presidency Magistrate on April 16, 1964. He did not appear on that date in that Court and it appears that he not traceable because he did not surrender to his bail bond anywhere. A circular letter seems to have been issued by the Chief Presidency Magistrate on March 12, 1964 according to which all applications for remands and extensions of bail periods under the Customs Act and also miscellaneous applications pertaining to such cases were to be placed in future before the Miscellaneous Court at the Esplanade Centre of Courts. According to this circular it appears that surety applications and also fresh cases under Customs Act were to be filed in the Miscellaneous Court. It is common case before us that on April 16, 1964 the accused neither appeared in the Court of the Chief Presidency Magistrate nor in the Miscellaneous Court. The Miscellaneous Court issued notice to the sureties on April 17, 1964 requiring them to show cause why their bonds be not forfeited. These notices were ultimately disposed of by the Additional Chief Presidency Magistrate, Third Court on May 27, 1964 and the surety bonds of both the sureties were ordered to be forfeited. Criminal Revision against the order of forfeiture was presented to the High Court where it was contended that the bonds having been executed for the purposed of guaranteeing the attendance of the accused in the court of the Chief Presidency Magistrate on the dates as directed by that court the bonds could not be forfeited by the Additional Chief Presidency Magistrate. The order of forfeiture was set aside by the High Court and it was observed that it would be open to the Chief Presidency Magistrate on proper proceedings to enforce the bonds if their conditions had not been fulfilled and if the court considered it proper to enforce them. The Customs Authorities then approached the Chief Presidency Magistrate under S. 514, Cr. P. C. and that Court issued fresh notices to the sureties calling upon them to show cause why the bonds executed by them be not forfeited. On March 17, 1966 the Chief Presidency Magistrate held that there was good and convincing evidence that accused Abdul Wahid Ibrahim was absent from that Court on April, 16, 1964 when he was required to be present according to that court's directions dated March 12, 1964. Both the bonds were accordingly forfeited. The Court also believed the evidence of the Custom Officers that the accused had neither appeared in the court of the Chief Presidency Magistrate nor in the Miscellaneous Court.

(3.) On revision by the two sureties, the High Court took the view that the accused was not bound to appear in the Court of the Chief Presidency Magistrate on April 16, 1964, an therefore the bonds executed by the sureties were not liable to be forfeited. It had been contended before the Chief Presidency Magistrate and upheld by him that according to the practice and procedure of the Court the accused was bound to appear before that Court on April 16, 1964, in spite of the fact that case was considered to have been transferred to the Miscellaneous Court by virtue of the Circular Order because it was on the appearance of the accused in the Court of the Chief Presidency Magistrate that he was to be directed by judicial order of that Court to appear in the Miscellaneous Court for further proceedings. The Customs Officer and the clerk of the Chief Presidency Magistrate's Court had deposed to this practice.