CANNON J.—Abdul Hameed v. Kalmunai Police.
1940Present: Cannon J.
ABDUL HAMEED Appellant, and KALMUNAI POLICE,Respondent.
310—M. C. Kalmunai, 164.
Surety for appellant—Forfeiture of bond—Powers of Court—Criminal Procedure
Code, ss. 341, 411.
A surety bound himself on behalf of an appellant “ that he (theappellant) shall attend at the Magistrate’s Court after the proceedings inthe case shall have been returned to the said Magistrate’s Court from theSupreme Court on appeal and there surrender himself …. andabide sentence which shall have been pronounced against him …”
The appeal was duly heard and dismissed, and the accused attendedthe Magistrate’s Court on April 23, 1945, when the Supreme Courtdecision was communicated to him. He was subsequently given timeto pay the fine which was due from him. Thereafter the accused didnot appear, and the Magistrate ordered the surety’s bond to be forfeited.
Held, that the terms of the surety’s bond were fulfilled when theaccused appeared on April 23, 1945, and that the'surety’s liabilitycame to an end on that date.
Held, further, that section 341 of the Criminal Procedure Code does notenable a bond to be taken if the appellant is not in custody.
^ PPEAL against an order of the Magistrate’s Court, Kalmunai.
G. Thomas, for the surety, appellant.
J. G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
April 16, 1946. Cannon J.—
This is an appeal by a surety, whose bond was forfeited on the groundthat he had failed to produce the accused before the Magistrate. It isnecessary to examine the original record in order to appreciate thepoints One Neina, the accused for whom the appellant became asurety, was convicted on September 18, 1944, of transporting paddywithout a permit. In his order on September 18, 1944, the Magistratesays :—
The accused is said to be a Vatte Vidhan. I sentence him to pay afine of Rs. 1,500. Time to pay is allowed till October 16, 1944. Indefault 6 months’ R. I., 1 fine to R.F. Bail accused in Rs. 1,500.
In- the record is the copy of a warrant, dated September 18, 1944,committing the accused to prison for default of payment of the fine. Itis difficult to understand why the accused was committed to jail onSeptember 18, 1944, when he was given time till October 16, 1944, to paythe fine. He was released on September 23, 1944, when he and hissurety executed a document purporting to be a bond and bearing thetitle “ Bond Pending Return to Distress Warrant By this bond theaccused bound himself to attend the Magistrate’s Court at Kalmunai onOctober 16, 1944, and to continue so to attend until otherwise directedby the Court ; and in case of default he bound himself to forfeit to the
CANNON J.—Abdul Hanieed v. Kalmunai Police.
Crown Rs. 1,500. The surety also bound himself in respect of thiqobligation. It would appear from this bond that no Warrant of Distresswas in fact issued, as the printed words “ and a Warrant of Distresshaving issued for the recovery of the said fine ” have been scored through.During the currency of this bond the accused filed his Petition of Appealen September 27, 1944. He thereupon executed another bond with thesame surety on that date. The latter bond is the one in respect of whichthe order now in appeal has been made.
The obligation of the surety under the second bond is thus stated :—
Sinnalebbepody Abdul Hamid of Addalaichenai, hereby declaremyself surety for the said Neina Aratchi Vadde Vidhane that he shallattend at the Magistrate’s Court of the said Magistrate after the pro-ceedings in the case shall have been returned to the said Magistrate’sCourt from the Supreme Court on appeal, and there surrender himselfinto the custody of the Magistrate’s Court, and abide sentenoe whichshall have been pronounced against him and not depart without leave,according to law; and in case of his making default therein bindmyself to forfeit to Hit* Majesty the King the sum of One thousandfive hundred rupees.
The appeal was duly heard and dismissed, and the accused attended theMagistrate’s Court on April 23, 1945, when the Supreme Court decisionwas communicated to him. He was then given time till May 7, 1945, topay the fine. On May 7, 1945, he again appeared and paid Rs. 500. Hewas given further time to pay the balance till May 21, 1945. On that dayhe again appeared and paid Rs. 100 and was given time till June 4, 1945,to pay the balance. Thereafter the accused did not appear, and theMagistrate on January 24, 1946, ordered the surety’s bond to be forfeited.
Mr. Thomas contends that the Magistrate’s order for the bond ofSeptember 27, 1944, was made without jurisdiction inasmuch as theaccused was not in custody at the time ; and consequently the bond wasa nullify. Therefore the Magistrate’s order on January 24, 1946,forfeiting it was null and void.
He further submitted that even if the bond of September 27, 1944, wasvalid, the obligation of the surety was fulfilled on April 23, 1945, when theaccused appeared to hear the judgment of the Supreme Court. Conse-quently, the bond being then discharged, the order of forfeiture abovementioned, from which this appeal is taken, was null and void.
For the Attorney-General Mr. Weeraratne is unable to support theMagistrate’s action in the matter.
I hold that the terms of the bond of September 27, 1944, were fulfilledwhen the accused appeared on April 23, 1945, and the surety’s liabilitycame to an end on that date.
On the question whether the bond of September 27, 1944, is a bondtaken under any provision of the Criminal Procedure Code, I do notthink that section 341, under which it purports to be taken, affords anyauthority for taking such a bond. That section provides for the takingof a bond when an appeal has been preferred, if the appellant is in custody,the object of the bond being to obtain the appellant’s release from
ROSE 3.—Brahamarvy t). Dangamuwa Komle.
custody. In this case the accused, was not in custody on September 27,1044, and the bond is therefore not a bond for forfeiture taken undersection 341. The summary procedure for forfeiture of bonds undersection 411 can be followed only in respect of bonds taken under theCode. The order of forfeiture is therefore bad.
For these reasons the appeal is allowed and the Magistrate’s orderset aside. The sum of Rs. 250, which has been paid by the surety onaccount, must be returned to him.
ABDUL HAMEED , Appellant, and KALMUNAI POLICE , Respondent