Modi, J. - (1.) THIS is an application in revision against an order directing the forfeiture of a bond for personal appearance of the accused Poonamchand in a case under sec. 427 I. P. C. pending in the court of the Second Class Magistrate, Jaswantpura.
(2.) IT appears that on 16. 10. 1951, when the case was called for hearing, the accused was absent, and an application was filed on his behalf by another accused Okhchand who is Poonamchand's brother that the accused Poonamchand had fallen ill in Bombay and was, therefore, unable to attend the court. A medical certificate was produced in support of the application. An objection was raised on behalf of the prosecution that the certificate was not of a Government doctor, and no reliance be placed on it, and it was prayed that the accused's bond be forfeited. The learned Magistrate accepted this plea, and forfeited the personal bond of the accused, and also the surety bond, and directed a notice to show cause and to produce evidence. The case was then fixed for the 19th November, 1951. On that date, Poonamchand was again absent and a further application supported by a medical certificate was produced on his behalf by his brother Okhchand. The court observed that the personal bond of the accused had already been forfeited and a notice directed to be issued to him but did not appear to have been issued. The court, therefore, ordered that a fresh notice be issued. On 14. 12. 1951, which was the next date of hearing, the surety of Poonamchand appeared and filed an application that Poonamchand was ill in Bombay and, therefore, the amount of the surety bond may not be recovered. The surety also stated that he wanted to produce evidence in support of Poonam-chand's illness. Thereupon, the court directed the surety to produce his evidence on the next hearing which was fixed for 11. 2. 1952. On 11. 2. 1952, the Magistrate ordered that the evidence regarding Poonamchand's illness be produced on the next hearing i. e. , 17. 3. 1952. On 17. 3. 1952, Poonamchand was absent. The court observed that there was no reason for Poonamchand's absence nor had any certificate of illness been produced, and, therefore, directed that his personal bond and the surety bond be forfeited, and that notices be issued to the persons concerned to deposit the bond-money. The case was then fixed for 28th April, 1952. On 28th April 1952, Poonamchand was present. The order-sheet shows that Poonamchand wanted time to deposit the amount of the personal bond, and the court, therefore, gave him time to do so until the next hearing. IT is against the order dated 17th March, 1952, that a revision was filed by Poonamchand before the learned District Magistrate, the present revision has been filed in this Court. The contention of the learned counsel for the applicant are mainly these: (1) that the learned Magistrate should have seen that a notice to show cause was served upon the petitioner before the order of forfeiture was made absolute; (2) that the courts below should not have rejected the medical certificate on the ground that it did not proceed from a government doctor; (3) that the trial court should have recorded the petitioner's evidence regarding his absence, which he and his surety were prepared to produce, and (4) that the petitioner had never really agreed to deposit the amount of the surety bond but had merely asked for time so that he might have an opportunity to seek his proper legal remedy in the mean time. The proceedings taken by the learned Magistrate in this case appear to suffer from a good deal of confusion. An order was passed by the learned Magistrate as early as 16th April, 1951, to the effect that the personal bond of the accused and the surety bond be forfeited for his default in appearance, and notices were ordered to issue to show cause why the amounts of the bonds be not recovered. It is not clear whether the same order was made absolute on 17. 3. 52 or a fresh order of forfeiture was made on that date. In the mean time the surety for the accused had appeared and wanted to lead evidence to prove Poonamchand's illness, but such evidence does not appear to have been recorded although it is obvious from the record that some witnesses were present at one or two hearings. It has further been strenuously argued before this Court that no notice to show cause in respect of the order passed against the accused on 17. 3. 52 or on the earlier occasion was served upon him. The learned Government Advocate who appears for the State has not been able to show that any notice was really served upon the petitioner. Now sec. 514 of the Code of Criminal Procedure provides that whenever it is proved to the satisfaction of the court by which a bond for appearance has been taken 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. It seems to me to be well established that if an order of forfeiture is passed without any notice to the person whose bond is forfeited, it amounts to a failure of justice. It is further necessary that it should be clear on the face of the record that he was so called upon. I am also of the opinion that such a defect cannot be cured by sec. 537 Cr. P. C. See Sarju vs. Jai Raj Kuar (1) (A. I. R. 1925 Oudh 51. ). Then again, if a party appears to show cause, he should be allowed an opportunity to lead evidence if he cares to produce any. The learned Magistrate in this case on the one hand did not accept the medical certificate produced on behalf of the accused for a reason which does not appear to me to be quite satisfactory and on the other hand did not record the evidence which was sought to be produced in support of the accused's illness. As the accused persons and those who were bound to produce them should be given an opportunity of bringing their evidence, if they so desire, where a Magistrate does not give such persons a proper opportunity for showing cause, the order directing forfeiture of the bond is bad and must be set aside. See Kumarapan vs. The King (2) (A. I. R. 1939 Rangoon 427 ). In this view of the case I have no hesitation in coming to the conclusion that the order passed by the learned Magistrate forfeiting the bond of the accused cannot be upheld. It follows as a corollary that the order of forfeiture of the surety bond cannot stand either. This revision is accordingly accepted, and the order of the courts below directing the forfeiture of the bonds in question is set aside. The bond-amounts, if recovered, shall be refunded. .;