KARALI CHARAN CHATTERJI Vs. KING

JUDGEMENT

(1.) THE facts of this case are as follows; A proceeding under Section 109, Criminal P.C., was pending in the Court of Mr. K. Mohammad, a Magistrate of Purulia, against Sheomangal Goala. THE latter was released on bail on his executing a bond to attend in the Court of Mr. K. Mohammad on 12 March 1947, to answer the charge and to continue so to attend until otherwise directed by the Court. Two persons stood surety and executed bonds conditioned in the manner stated above. One of these sureties was Biswanath Ojha and the other was the petitioner, who is a Mukhtar by profession. Sheomangal failed to appear before the Magistrate on 19 April and on subsequent dates to which the case was postponed. On 10th May the bailors were called upon to show cause why their bonds should not be forfeited. THE petitioner appeared on 7 June in response to this notice and then stated that he was unaware of the whereabouts of Sheomangal, but he thought that the other surety Biswanath Ojha would be able to furnish information as to the whereabouts of the accused. THE Magistrate directed a notice to issue to Biswanath Ojha to report by 7 July without fail and to produce the accused on 14 July THE order terminated with the words: "Cause shown by K.C. Chatterji and accepted". THEreafter the Magistrate Mr. K. Mohammad was transferred. THE work pending in his Court was distributed by the Sub-divisional Magistrate among other Magistrates, including Mr. P.K. Banerji, to whom the proceedings pending against Sheomangal and in respect of the bail bonds were transferred. Mr. Banerji took the view that Mr. K. Mohammad's order of 26 June did not amount to a discharge of the petitioner from his bail bond, and he directed a forfeiture of the amount of the bond, namely, Rs. 250, after giving the petitioner an opportunity of showing cause against the forfeiture. Action was also taken against Biswanath Ojha. K.C. Chatterji preferred an appeal to the Deputy Commissioner of Manbhum, contending that he had been discharged from his bail bond by the order of Mr K. Mohammad on 26 June.

(2.) READING the petition filed by K.C. Chatterji on 26 June with the order of that date I doubt very much whether it was ever the intention of Mr. K.Mohammad to discharge K.C. Chatterji from his bond, and it has not been seriously contended before me that this was the effect of the order of 26 June. The Deputy Commissioner dismissed K.G. Chatterji's appeal, but in doing so, purported, in exercise of his revisional powers, to set aside the order of 26 June. This rule was issued to consider the validity of Mr. P.K. Banerji's order forfeiting the petitioner's bond and the order of the Deputy Commissioner dismissing the petitioner's appeal. The miin contention of the petitioner before me is that the bond being for the appearance of Sheomangal before Mr. K. Mohammad without any further provision that he should be produced, if necessary, before any other Court to which, the case against him might be transferred, there has been no breach of the bond by reason of his failure to appear before Mr. Banerji and by the terms of Section 614, Criminal P.C., Mr. Bauerji had no jurisdiction to declare the bond forfeited. As to the first point, there was a failure to appear before Mr. K. Mohammed when the case was before him, so that the first objection to the forfeiture is without substance. The second objection, however, is of a more serious nature. Section 514 provides: Whenever it is proved to the satisfaction of the Court by which a bond under this Code has Been taken...that such bond has been forfeited, the Court shall record the grounds of such proof and may call up n any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid". The language of this provision is unambiguous that it is the Court by which the bond was taken that has power to take the necessary steps to enforce forfeiture of it. The Court of Mr. Banerji was not the Court which took this bond Prima facie, therefore, the Court of Mr Banerji has no jurisdiction to declare the bond forfeited. That was the view taken by a Division Bench of the Bombay High Court in Ballabhdas Mutiram Gupta V/s. Emperor A.I.R. 1943 Bom. 178. There an accused had given a bond for his appearance in the Court of the Chief Presidency Magistrate. He attended in the Court of the Chief Presidency Magistrate and continued to do so until the case was transferred to the Court of the eighth Presidency Magistrate. In that Court also he appeared on some dates but, eventually, absented himself. The eighth Presidency Magistrate then proceeded under Section 514 to forfeit the amount of the bond. It was held that when an accused executes a bond to appear before a particular Court, it is that Court alone which has jurisdiction to forfeit the bond and not the Court to which the case is subsequently transferred. There is a decision of a single Judge to the contrary in Hajiz Mustaqimuddin V/s. Emperor . There the bond was for attendance in the Court of the Cantonment Magistrate. This Court ceased to exist and all cases pending in it were transferred to the Court of the Special Magistrate, who proceeded to forfeit the bonds of the sureties for non production of the accused. It was held that the Special Magistrate had power to do this. The reason given was that any other view of the law would produce most inconvenient results, since if an accused were on bail when a ease was transferred, it would in every case be necessary before transferring the case to order his arrest or to require him to give fresh sureties. That result, however, is avoidable by so phrasing the terms of the bond that the undertaking is for the accused to appear or be produced before a particular Magistrate or any other Magistrate to which the case is transferred. In the Bombay case to which I have referred the learned Chief Justice made the suggestion in the following language: it would seem desirable to amend the form of bond used in the Court of Presidency Magistrates so as to require attendance in the particular Court, or in the Court of any other Presidency Magistrate, to which the case may be transferred. The forfeiture being in the nature of a penal remedy, the conditions for it must be proved strictly to exist. When a bond has been given to produce an accused in the Court of Mr. Y it is no breach of the conditions of the bond to fail to appear in the Court of Mr. Y, unless the bond is so conditioned that omission to appear in either of the Courts is expressed to entail the forfeiture. In my opinion, the law is as stated in the Bombay decision, and I would, therefore set aside the order of forfeiture in this case and direct that the amount, if realised, be refunded.