STATE Vs. THOMAS MATHIA
LAWS(KER)-1955-6-17
HIGH COURT OF KERALA
Decided on June 25,1955

STATE Appellant
VERSUS
THOMAS MATHIA Respondents

JUDGEMENT

- (1.) The State has filed this petition seeking a revision of the order passed by the Additional District Magistrate at Quilon in Crl. R.P. No. 1 of 1955 on the file of his Court. That order was passed under the following circumstances. In Miscellaneous Case No. 20 of 1952 on the file of the First Class Magistrates Court, at Pathanamthitta the learned Magistrate had started security proceedings under S.107 of the Code of the Criminal Procedure against the five counter petitioners in that case and on 25th August 1952, an order was passed under S.117(3) of the Code calling upon the counter petitioners to execute interim security bonds undertaking not to commit any breach of the peace by indulging in criminal acts. Bonds with two sureties were accordingly executed. Subsequently on 7th October 1952, the complainant in the miscellaneous case filed a petition that counter petitioners 4 and 5 had attempted to attack the petitioner and his servant with dangerous weapons like chopper and dagger on the previous day. That petition was forwarded to the Police for enquiry and report. The Sub Inspector reported that the counter petitioners 4 and 5 who had executed interim bonds under S.117(3), had committed the criminal acts as alleged by the petitioner. The learned Magistrate examined the petitioner and also the Sub Inspector who were both allowed to be cross examined by the counter petitioners. The complaint petition, dated 7th October 1952 was marked as Ext. A and the Sub-Inspectors report on that petition was marked as Ext. J(1). At that stage the case was transferred to the Additional First Class Magistrates Court at Chengannur where the case was renumbered as M.C. 16 of 1955. Both sides were heard on the allegations contained in the petition Ext. J in the light of the evidence recorded and the learned Magistrate passed an order on 10th October 1955 recording his findings that counter petitioners 4 and 5 had committed a breach of the undertaking in the bonds executed by them and had therefore forfeited the bonds. Counter petitioner 4 was accordingly remanded to custody and a warrant of arrest was issued against the 5th counter petitioner. Notices were directed to be issued to the sureties to show cause why their bonds should not be forfeited. Against this order of the First Class Magistrate the 4th counter petitioner preferred Crl. R.P. No. 1 of 1955 before the Additional District Magistrate at Quilon. In accepting the revision petition the learned District Magistrate held that the order of the First Class Magistrate forfeiting the bond was contrary to the provisions of S.121 of the Code of Criminal Procedure in so far as the executants of the bond had not been convicted of any of the offences specified in that section. The State maintains that the view taken by the District Magistrate is erroneous and the present revision petition has been filed with the object of getting a ruling on that question. S.121 of the Code of Criminal Procedure lays downs what would amount to a breach of a bond to keep the peace and to be of good behaviour. That section states that the bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond.
(2.) The procedure to be followed for enforcing the forfeiture of the bond as a consequence of such a breach of the bond is laid down in S.514 of the Code. Cl.1 of that section states that: 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 satisfactions 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. Cl. 2 states that if sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same by issuing a warrant for attachment and sale of the movable property belonging to such person. Clause.3 states how such a warrant may be executed. Clause.4 states that if the penalty is not paid and cannot be recovered by the attachment and sale of the movable property of the executor of the bond he shall be liable by order of the court which issued the warrant for attachment and sale of such property, to imprisonment to the civil jail for a term which may extend to six months. Cl.5 empowers the court in its discretion to remit any portion of the penalty and to enforce payment of the balance only. Clause.6 provides for the discharge from all liability of the estate of a surety on the death of such surety. Clause.7 states that when a person who has furnished security under S.106 or S.118 or S.562 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, a certified copy of the judgment of the court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and if such certified copy is so used the court shall presume that such offence was committed by him unless the contrary is proved. It is this provision that is relied on by the learned District Magistrate in support of his conclusion that there should be conviction by a court for any of the offences specified in S.121, Criminal Procedure Code for forfeiting the bond. It is obvious that the District Magistrate has failed to grasp the very limited scope of the provision contained in Clause.7 of S.514. That clause contains only an enabling provision and it merely states that when a person who has furnished the security under any of the sections specified therein is convicted of an offence the commission of which constitutes a breach of the bond a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties. The production of such a certified copy of the judgment will raise a presumption that such offence was committed by him. But there is no warrant for the assumption that a forfeiture of the bond can be proved and established only by adducing evidence that the executant of the bond has been convicted of an offence the commission of which will constitute a breach of the conditions of the bond. All that could be said is that the production of a certified copy of the judgment showing that the person concerned has been convicted of an offence the commission of which constitutes a breach of the conditions of his bond, is one of the modes of proving that there has been a forfeiture of the bond. This provision is confined to proceedings against sureties as is made clear by Clause.7 itself. But the general provision contained in Clause.1 of S.514 clearly sanctions other modes of proof of forfeiture of the bond. The general provision contained in this clause is not in any way abrogated or curtailed by the enabling provision contained in Clause.7. What is required in Clause.1 is that before ordering a forfeiture of the bond it should be proved to the satisfaction of the court that grounds for such forfeiture do really exist. Such grounds should also be recorded in the order of forfeiture. What is to be proved is that the executant of the bond has committed or attempted to commit or has abetted the commission of an offence punishable with imprisonment as indicated by S.121. It cannot be said that his conviction by a competent court would alone amount to proof of such a conduct on his part. Forfeiture of the bond is independent of the prosecution for any of the offences mentioned in S.121. Such prosecution may result in a conviction followed by an appropriate sentence while forfeiture of the bond will lead only to a levy of the penalty as provided for in the bond. Where it is not possible to recover such penalty in the manner prescribed by S.514, the person bound to pay the same can only be ordered to be imprisoned in the civil jail for a period which may extend to six months and cannot be sentenced to undergo imprisonment as if he stands convicted of an offence under the Criminal Law. The forfeiture of the bond is essentially a summary proceeding as indicated by S.514. The question as to whether first of all there should be a conviction of the person bound over before taking proceedings under S.514 for forfeiting his bond had come up for consideration in Sheo Jangal Prasad v. Emperor (1929) 30 CriLJ 203 and there the question was answered in the negative and it was pointed out that it is sufficient if it is proved that the person bound over has committed any of the offences which would amount to a breach of the undertaking in the bond. In Zulmi Kahar v. Emperor (1930) 31 CriLJ 420 also it was pointed out while considering the scope of S.514 that the Magistrate should record evidence and come to a definite finding that the bond has been forfeited for the reasons stated, before ordering a levy of the penalty or issuing notice to show cause why the same should not be levied. In the present case, the First Class Magistrate had recorded evidence as contemplated by S.514 by examining the petitioner who had preferred the complaint against counter petitioners 4 and 5 and also the Sub Inspector who had enquired into such complaints and had submitted a report that the criminal acts attributed to the counter petitioners had been committed by them. It was on a consideration of such evidence that the First Class Magistrate ordered a forfeiture of the bonds taken from counter petitioners 4 and 5 after recording his finding that he was satisfied on the evidence recorded that they have committed a breach of the undertaking in their bonds. To that extent there is nothing illegal or irregular in the proceedings passed by the First Class Magistrate so as to justify interference by the District Magistrate in the exercise of his revisional jurisdiction on the sole ground that the counter petitioners had not been convicted of the offence stated to have been committed by them during the currency of their bonds. The order forfeiting the bonds is therefore restored. At the same time it has to be pointed out that the First Class Magistrate erred in ordering the imprisonment of counter petitioners 4 and 5 as a consequence of the forfeiture of their bonds. They could be ordered to be kept in custody only in case the Magistrate thought that it may not be safe to release them on bail and not because of the forfeiture of their bonds. The consequences to follow from such a forfeiture of the bonds must be strictly in accordance with the procedure laid down in S.514. The first step will be to issue notice to the person bound by such bond calling upon him to pay the penalty provided therein or to show why it should not be paid. If sufficient cause is not shown and the penalty is not paid, the court may issue a warrant for the attachment and sale of the movable property of such person for recovering the amount of the penalty and if such recovery is found to be not possible he may be ordered to be imprisoned in the civil jail for a term which may extend to six months. Steps in these directions will be taken by the First Class Magistrate. In the result, this revision is allowed in the manner and to the extent indicated above.;


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