MUMTAZ MOHAMMAD Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONER was a bailor for one Prasanta Kumar Sinha who was an accused in a case under Section 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 bailers 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.

(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.) 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 Ghulam Mehrli v. State of Rajasthan : A.I.R. 1960 S.C. 1185. It has been held therein that Section 514, Code of Criminal Procedure shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the Court proceed to recover the money. When no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed. It has been clearly stated that absence of notice to show cause why the penalty should not be paid vitiates the proceeding. Nowhere it is stated that a notice is mandatory prior to the order for forfeiture of the bail -bond. Mr. Patra argues that in that very case it has been stated in para 3 that no notice to show cause why the bail -bond should not be forfeited has been issued and, therefore, it should be inferred that the Supreme Court was of the view that issue of notice to show cause before forfeiture of the bail -bond was mandatory. After going through the decision, I find that such a view has not been expressed by the Supreme Court. The aforesaid decision has been considered and explained in Tarni Yadav v. State, A.I.R. 1961 Pat. 491, by a Division Bench. While explaining the provisions of Section 514, Criminal Procedure Code, it has been held as follows: