KUNJU MOHAMMAD Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a criminal revision petition by the sureties for the accused in Miscellaneous Case No. 26 of 1958 on the file of the District Magistrate of Ernakulam. When: the accused was arrested and brought before court he was granted bail and the two petitioners executed bonds undertaking to produce him on the dates of trial, binding themselves each in the sum of Rs. 500/-. The case was ppsted to 30th August 1958 and notice was issued to the accused and also to the sureties to produce him on that day. Neither the accused nor the sureties were present on 30th August, and thereupon notices were issued to the sureties to show cause why the bonds executed by them should not he forfeited and the penalty realised from them. The sureties appeared in court on 27th September 1958 and applied for one month's time to produce the accused. Accordingly the case was posted to 27th October 1958 when the sureties again applied for time, on the ground that the accused was ill. This application for adjournment was refused and the learned Magistrate passed an order forfeiting the bonds and issuing distress warrants against the sureties. The sureties went up in revision before the Sessions Judge, Ernakulam, who dismissed the same. They have therefore preferred this petition,

(2.) Learned counsel for the petitioners urged that the District Magistrate should have conducted an enquiry and taken evidence before forfeiting the bonds. Reliance was placed on the decisions of the Patna High Court in Kishan Narayan v. Emperor, AIR 1922 Pat. 242 and Zulmi Kahar v. Emperor, AIR 1929 Pat. 643. In the former case the bond was one for keeping the peace, and it was held that before forfeiting the bond the Magistrate was bound to take evidence on the question whether the accused had committed breach of the peace. The latter case was one in which a bond had been given by a surety for the appearance of the accused. Following the earlier decision it was held that the Magistrate was bound to come to a finding based on some evidence that the bail bond executed by the surety had been duly forfeited. The facts are different in the two cases, and so far as a case in which the bond is taken for the appearance of the accused is concerned, there does not appear to be any need to conduct an enquiry or take evidence, as breach of the undertaking in the bond is evident from the absence of the accused in the trial. This distinction has been pointed out in Rajbansi Bhagat v. Emperor, AIR 1929 Pat. 658 and Gurupada v. Mysore Govt., 1952 Cri LJ 1532: (AIR 1952 Mys 102). There is therefore no substance in the contention that the Magistrate was bound to take evidence before forefeiting the bonds.

(3.) The next point urged is that after forfeiting the bond, a notice should have been issued to the sureties to show cause why the penalty should not be realised. It is seen from the records that notice to show cause why the bonds should not be forfeited and the penalty realised was issued to both the sureties on 30th August 1958. The sureties appeared pursuant to the notice and they merely asked for one month's time to produce the accused. Even after such an adjournment was granted they did not produce him but merely repeated the prayer for adjournment. It was in these circumstances that the order of forfeiture was made. It is true that another notice was not issued to the sureties thereafter, but this omission cannot invalidate the action taken. An opportunity had been given to the sureties to show cause against the forfeiture of the bonds and this, in my opinion, is sufficient compliance with Section 514 of the Code of Criminal Procedure. It has not been shown that there has been failure of justice by the omission to send a second notice after the order of forfeiture of the bonds was made.