GANPATLAL SHARMA Vs. STATE

JUDGEMENT

(1.) A proceeding under Section 107 of the Code of Criminal Procedure was drawn up against two persons named Prayag Bhuiyan and Budhan Das. By an order dated 10-6-1958, they were called upon to execute interim bonds of Rs. 2,000/- each with two sureties of the like amount to keep the peace during the pendency of the proceeding. Bonds were accordingly, furnished before 17-6-1958. The petitioner was one of the sureties. On 28-8-1958, the Assistant District Prosecutor attached to the Court of the Sub-divisional Magistrate of Baghmara filed a petition for cancellation of the interim bonds on the strength of the report of the Sub-Inspector of Police, Katras, dated 18-8-1958, which indicated that Budhan Das and Prayag Bhuiyan had assaulted Dasarath Chamar on 13-8-1958. There was station diary entry No. 318 dated 13-8-1958, in that connection, and Dasrath Chamar was directed to go to Court. When he filed a complaint before the Court, Budhan Das and Prayag Bhuiyan were summoned to stand their trial under Section 323 of the Penal Code. The petition of the Assistant District Prosecutor was placed before the Sub-divisional Magistrate on 30th October, 1958, and, by an order of the same date, he cancelled the interim bonds and also forfeited Rs. 500/- out of the surety amount of each surety. In his order, he referred to the facts which I have alrady stated, and he gave two grounds for taking the action which he did. The first ground was that, a prima facie case having been found against Budhan Das and Prayag Bhuiyan, there was sufficient ground for him to cancel the interim bonds, and the cancellation of the interim bonds justified the forfeiture of the surety bonds. The second ground was that Budhan Das and Prayag Bhuiyan absented themselves from Court on 17-6-1958, and Budhan Das absented himself from Court on 15-9-1958. It has been shown to me that both these facts are incorrect. Orders Nos. 5 and 6 show that the opposite party were absent in the beginning on 17-6-1958; but they, subsequently, appeared, and no action was taken against them. Order No. 11 shows that Budhan Das was absent on 15-9-1958: but he filed an application for time on the ground that he was ill, and he filed a medical certificate in support of that allegation. The absence of one or the other of those persons could not, therefore, be made a ground for cancellation of the interim bonds or the forfeiture of the surety bonds.

(2.) So far as the first ground is concerned, it is manifest that the learned Magistrate misdirected himself. Sub-section (1) of Section 514 of the Code of Criminal Procedure reads: "Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid." This sub-section makes two points absolutely clear. Firstly the Court concerned must be satisfied that a bail bond has been forfeited; and, secondly, this satisfaction must be based upon, some proof. If the bond is for appearance of a person in Court, the Magistrate may well be satisfied upon the mere fact of absence of that person that the bond has been forfeited. He can then direct the person bound by the bond to pay the penalty or to show cause. If it is shown to the Magistrate's satisfaction that the person had some good and valid reason for his absence, he may set aside his order for realisation of the penalty. If not, he may proceed to recover the penalty as provided in Sub-section (2) of the same section. If, however, the bond is not for appearance of a person in Court but for following a certain course of action, viz., keeping the peace, the Magistrate cannot act unless he is satisfied on proof furnished before him that a breach of the terms of the bond has been committed. The mere fact that the police has reported that a breach of the bond has been committed, or the mere fact that a prima facie case has been made out before some one else that there has been such a breach, cannot possibly be sufficient for him to take action under Section 514(1). The danger of such a course is obvious. If an interim bond is taken while a proceeding under Section 107 is pending, or if a bond is taken in pursuance of an order under Section 118 of the Code of Criminal Procedure, there is likely to be a tendency in the opposite party to make allegations relating to a breach of the terms of the bond. If a mere allegation or the mere fact that the man, who has been bound to keep the peace, has been summoned in a case were to be sufficient, the bond would be unjustly forfeited in many a case.

(3.) In the circumstances mentioned above, I am of the opinion that the learned Magistrate had no proof before him on the basis of which he could cancel the interim bonds or forfeit the surety bonds. That being so, this application is allowed, and the learned Magistrate's order dated 30/10/1958 is set aside.