MOHAMMAD HUSSAIN BANDY Vs. STATE

JUDGEMENT

(1.) TWENTY two persons including one, Abdul Rashid Begh, were being tried before the City Munsiff, Judicial Magistrate 1st Class for offences under Sections 341 and 188. R. P. C. Mohammad Hussain Bandy was a surety for the appearance of Abdul Rashid Begh. During the progress of the case Abdul Rashid Beg defaulted in appearance on 29. 7. 1971 when the case was fixed for hearing. The learned Magistrate issued a notice to the surety. Mohammad Hussain Bandey to attend the Court on 29. 8. 1971 and show cause why he should not be ordered to pay the penalty provided in the bond. It turned out that 29. 8. 1971 was a Sunday. The case was taken up on the following day when the surety Mohammad Hussain Bandy was not present. The learned Magistrate therefore ordered the recovery of the bail amount by attachment of the moveable property of the surety. The surety went in appeal to the Sessions Judge Srinagar. By his order dated 29. 10. 1971 the learned Sessions Judge Srinagar set aside the order of attachment and remanded the case for fresh disposal in accordance with law. Incidentally he made some strictures against the trial Magistrate and forwarded a copy of judgment to the Hon'ble Chief Justice for his perusal. The Hon'ble Chief Justice felt that the reasoning given by the Sessions Judge in support of the judgment was not correct and issued a rule why the order made by him should not be set aside.

(2.) I have heard the counsel for the surety and the Additional Advocate General.

(3.) BEFORE any person bound by a bond is ordered to pay the penalty provided in the bond or action is taken for the recovery thereof under Section 514, Cr. P. C. the Court is required to call upon such person to pay the penalty or td show cause why the penalty should not be paid. If any action is taken without such a notice it is illegal and liable to be set aside. The form of the notice is given under. Form XIV in Schedule 5 of the Code of Criminal Procedure. The form requires the surety to pay the penalty or to show cause within a period specified in the notice why the payment should not be enforced. Notice issued in the instant case did not correspond to the prescribed form, in that no period was provided therein within which the surety should show cause why the penalty should not be paid. Instead it specified a particular date namely 29. 8. 1971 on which he was required to attend the Court and file his objections. This may be construed as a substantial compliance with the requirements of Section 514 regarding notice but the fact remains that the date specified in the notice was a public holiday when the Court would not sit and it could not be obviously possible for the surety to answer the notice. The notice therefore amounted to a denial of opportunity to defend the matter and cannot be treated either reasonable or valid. It was no notice in the eye of law. No duty was cast on the surety to answer it. The position would be different if a valid notice were already issued to the surety and then, after he had attended the Court, the case had been adjourned to a date which was a closed day. In that case no fault could perhaps be found with the notice already issued and the question would be whether a further adjournment of the case to a day which was a closed day would constitute an interruption in the proceedings entitling him to a fresh notice. Here it is that it becomes relevant to consider that a duty was cast on him by the initial notice, which was valid and proper, to find out the next date fixed for hearing in the matter and that he would not be entitled to any fresh notice. It is in such circumstances that it was held in Ghulam Mohi-ud-Din v. Jamal Shah AIR 1968 Jandk 56, relied upon by the learned trial Magistrate that the defendants were bound by the initial notice and that the time ran against them from the date the ex parte decree was passed against them. That case is clearly distinguishable in the instant case. Here the initial notice itself was bad. It was no notice in the eve of law. As such the proceedings based thereon were invalid. The question of interruption in these proceedings did not arise to call in aid the aforesaid decision. The learned Sessions Judge was therefore perfectly justified in setting aside the order of attachment based upon such notice.