K.N. Srivastava, J. - (1.) THIS is an application in revision against the order passed by the III Addl. Sessions Judge, Varanasi, ordering the realisation of Rs. 1,500 out of the sum of Rs. 3,000 from the Applicant.
(2.) THE facts giving rise to this revision are as follows: One Iqbal Ahmad was a prosecution witness in a case State v. Ramnath and Ors. Under Section 307 IPC. Iqbal Ahmad in spite of being served did not appear in court on the date fixed for his evidence. Ultimately other procedures prescribed in the Code were taken to secure his attendance. He was arrested. The Applicant stood all his surety for his appearance in court on the date fixed for his evidence. The case Under Section 307 IPC had chequered history but on 21 -8 -1970 Iqbal Ahmad was directed to appear in the court of the III Temp. Sessions Judge, Varanasi. He failed to appear on that date. Fresh warrant for his arrest was issued and a notice was issued to the Applicant to show cause as to why the amount of the bond executed by him be not realised from him. In response to this notice, the Applicant appeared in court and put an explanation that he was out of station and had gone to Ajmer and therefore, he could not attend the court. His explanation was not satisfactory and the trial court ordered the realisation of Rs. 1,500/ - out of the amount of the surety bond. It appears that the learned Sessions Judge had not carefully read Section 514 Code of Criminal Procedure before passing the impugned order. A perusal of this section will show that there are two stages - -the first is the stage when a court being satisfied that a surety bond had been forfeited passed an order recording his reasons for the same and the second stage comes after this forfeiture order, is passed and a notice sent to the surety as to why the amount of the bond be not realised from him. On this notice when the surety appears and his explanation is perused, an order is passed about the realisation of amount of the entire bond or part of it or if the explanation is found satisfactory the notice against the surety is discharged.
(3.) IN the instant case, we find that before issuing a notice to the surety, the learned trial court did not pass any order for forfeiture of the amount of bond nor recorded any reason for its being so satisfied. Thus the notice to the Applicant surety was issued for showing cause as to why the amount of the bond be not realised from, him without passing any order forfeiting the bond. This was, therefore, illegal and against the provisions laid down Under Section 514 Code of Criminal Procedure. The Magistrate, as observed above, could not, Under Section 514 Code of Criminal Procedure, issue notice to the surety to show cause as to why the amount of the bond be not realised from him unless and until he had complied with the earlier provisions of the section by forfeiting the bonds and giving his reasons for being so satisfied. In this view of the matter, the order of the trial court for realisation of Rs. 1,500/ - from the Applicant out of the surety bond is illegal and against the provisions laid down Under Section 514 Code of Criminal Procedure. In this view of the matter, the order passed by the learned trial court cannot be maintained.;