APPANNA Vs. STATE OF MYSORE

JUDGEMENT

(1.) This petition is directed against the order passed by the First Class Magistrate, Hassan under S.514 of the CrlPC (to be hereinafter referred to as the Code'), in C.Mis.No.123 of 1971 forfeiting the bond executed by the petitioner as surety for keeping an accused in CC.No. 1508 of 1970 present in Court, in favour of that Court, and levying a penalty of the full amount of the bond, viz. Rs.500 and confirmed by the Sessions Judge, Hassan, in Criminal Miscellaneous Appeal No.3 of 1972. The few facts necessary for a decision in this matter may be narrated as follows : The accused in CC.No.1508 of 1970 on the file of the First Class Magistrate, Hassan, was charge sheeted for having committed an offence punishable under S.379 of the IPC read with S.75 of the IPC. and this petitioner and another person stood surety for the said accused. The petitioner excuted a bond in favour of the Court stipulating that he would keep the accused present on each and every date of hearing of the said criminal case and if he failed to do so, he would forfeit a sum of Rs.500 in favour of the State. The said accused did not appear to take trial in the said criminal case and 'thereupon the Court called upon the sureties to keep the accused present, but they were unable to do go. Then the learned Magistrate issued a notice to this petitioner calling upon him to show-cause as to why under the above narrated circumstances the bond executed by him should not be forfeited. The petitioner ultimately appeared and filed objections after engaging a Counsel. He contended that he was a poor man and that a mutual friend had persuaded him to stand surety for the accused in the said case and therefore, his bond should not be forfeited. He also contended that even if the bond is forfeited, no penalty should be levied on him, and in case it was decided to levy penalty on him, the amount should be restricted to a sum of Rs.100 only. The learned Magistrate after hearing the contentions of the petitioner passed the impugned order holding that the bond was forfeited and the petitioner was liable to pay the full amount of the bond, viz., Rs.500 as penalty. He then passed an order directing a notice to be issued to the petitioner to pay the penalty of Rs.500. It is at that stage that the matter was taken up in appeal before the Sessions Judge, Hasssan, in Crl. Mis. App. No.3 of 1972 and the Sessions Judge confirmed the order of the Magistrate.

(2.) Sri S. Raja lyengar, the learned Advocate appearing on behalf of the petitioner, urged that the learned Magistrate was wrong in passing one consolidated order of forfeiting the bond and directing the petitioner to pay penalty of Rs.500 as such a course is not open under the provisions of S.514(1) and (2) of the Code. He nextly contended that the learned Sessions Judge was wrong in observing in his judgment that the appellant was unable to argue before him that any fault in following the procedure, had been committed by the learned Magistrate. Sri Raja lyengar placed reliance on the decision in Udai Raj v. State AIR, 1965 All. 605. in support of his contention.

(3.) The facts in the said decision were that the Sessions Judge had passed a consolidated order of forfeiting the bond executed by the surety and directing recovery of penalty of a particular sum as the surety had failed to keep the accsued present befor him in the concerned Sessions Case. This order had been passed without issuing any notice to the surety. H.C.P. Tripathi, J. held that it was irregular to pass a single order, forfeiting a surety bond and directing its amount to be realised as penalty, as according to S.514 of the Code two steps were essential and those were: (1) an order to be passed forfeiting the bond, and (2) a notice to be served on the sureties to show cause why the amount of the bond be not realised from them by way of penalty. The order in question was set aside.