ABDUL REHMAN Vs. STATE

JUDGEMENT

(1.) THIS is a revision by the surety Abdul Rehman against an order of forfeiture of his surety bond passed by the two courts below.

(2.) THE material facts are these. THE petitioner Abdul Rehman stood surety for the appearance of his son Gulam Mohammed in the court of First Class Magistrate (No. 1), Jodhpur City in connection with the prosecution of Gulam Mohammed under secs. 414, 457 and 380 I. P. C. THE necessary bonds were executed on the 20th July, 1953, On the 14th September, 1953, it was reported that the accused was absent as he was suffering from malaria and a medical certificate was produced in support of the same, and therefore, the case was adjourned to the 29th September, 1953. On the last mentioned date, counsel for the accused again prayed that the accused was confined to bed at Ajmer and, therefore, the case came to be adjourned to another date. THE court then fixed the case for the 12th October, 1953, and counsel for the accused was directed to produce the accused on that date. Meanwhile on the 9th October, 1953. the petitioner Abdul Rehman, surety, moved an application before the trial Magistrate that the accused (Abdul Rehman's son) had fallen in bad company and that it was impossible for the former to control his (accused's) movements and, therefore, he prayed for discharge of his surety bond and he further prayed that a warrant of arrest be issued against the accused for his production in court. Unfortunately, the Magistrate failed to take the only requisite step which was enjoined upon him by law, namely, to issue a warrant of arrest directing that the accused Gulam Mohammed be brought before him immediately. Instead the Magistrate passed an order on the same day in which he said that the date fixed for the hearing of the case was the 12th October, 1953, and that it was not possible to get the warrant of arrest served in such a short time and that the application be therefore put up on the 12th October, 1953, and the surety be directed to produce the accused without which, the learned Magistrate further pointed out - "the surety could not think himself free from the burden. " When the case was called on the 12th October 1953, both the accused and the surety were absent, their bonds were forfeited and apart from the notice issued to the accused, a notice was sent out to the surety to show cause why the penalty mentioned in the bond be not recovered from him. THE petitioner contested this notice and urged that he had already filed an application on the 9th October, 1953, praying for charge of his surety bond and for issue of a warrant of arrest against the accused Gulam Mohammed immediately but the court had somehow failed to issue the warrant and, therefore, he was not liable to pay any penalty in the circumstances of the case. By his order dated the 3rd February, 1954 the trial Magistrate rejected the objection of the surety and ordered the entire bond-money namely Rs. 2000/- to be recovered from the petitioner. THEreafter the petitioner went in appeal to the Additional District Magistrate who upheld the order of the trial Magistrate. Hence this revision.