NANHEY SHAH Vs. STATE

JUDGEMENT

(1.) THIS revision has been filed by two persons Nanhey Shah and Abdul Hamid against whom an order has been passed under section 514 of the Code of Criminal Procedure and proceedings for the recovery of the forfeited amount of the surety bonds are pending in the Court of Sri N. C. Jain, Magistrate. First Class of Moradabad. The Magistrate, under Sub-section (2) of Section 514 of the Code of Criminal Procedure, by an order dated 25th of November, 1955, directed the issue of warrant of attachment of moyeable property of the sureties. The filed an appeal against that order which was heard by Sri M. Murtaza Husain, Addl. Sessions Judge of Moradabad. He dismissed the appeal but reduced the amount of the penalty from Rs. 1000/- to Rs. 500/- in case of each of the two appellants, who have now come in revision to this Court

(2.) THE first error which appears to have crept in the record Is that according to the surety bonds Nanhey Shah and Abdul Hamid were the two sureties, but the appeal was filed by Nanhey Shah and Abdul Hamid and even this revision has been preferred by them. It does not appear whether the name of the second surety is Abdul Hakim or Abdul Hamid, though parentage is correctly shown as Chidda.

(3.) WHAT was contended on behalf of the applicant was that before an order is passed under Sub-section (1) of Section 514. Cr. P. C. the Magistrate must be satisfied that the surety bond has been forfeited. Under the earlier part of Sub-section (1) aforesaid, it is to be proved to the satisfaction of the court by which a bond has been taken that such bond has been forfeited and the court is required to record the grounds of such proof. It is only after this stage is gone through that the second part of Sub-section (1) aforesaid will apply and the surety will be called upon either to pay the penalty prescribed under the bond or to show cause why it should not be paid. In this particular case, there is specific order passed by the Magistrate that the surety bond has been forfeited. In order that it may be proved to the satisfaction of the Court that the bond has been forfeited, it may not be necessary for the Magistrate to take down any fresh evidence. The facts which appear on the face of the record may themselves be sufficient to prove "to the satisfaction of the court" that the bond has been forfeited. But Sub-section (1) of Section 514 does not stop there. It proceeds further and says that "the Court shall record the grounds of such proof". When the Court is required to record a certain thing, the recording of that thing is not to be merely in the mind of the Presiding Officer of the Court, but in black and white. It means, therefore, that the court must pass a specific order that having regard to such and such facts which have been brought out in evidence or from the record, it has been proved to its satisfaction that the bond has been forfeited. This has not been done in this case.