H. N. G. FERNANDO, J.—/« re Anulawathie Perera
1958Present: H. N. G. Fernando, J.
In re ANULAWATHIE PERERAS. G. 235—Application in Revision in M. C. Colombo Smith 80505
Surety—Bond given by him for appearance of an accused-—Accused’s failure to appear—Forfeiture of bond.
A person who enters into a bond as surety for the appearance of an accusedcannot be held responsible if the failure of the accused to appear on the appointeddate is due to causes completely beyond the control of the accused and is notattributable to any desire on his part to evade attendance.
^APPLICATION to revise an order of the Magistrate’s Court, Colombo
E. A. G. de Silva, for the petitioner.
M. Hussein, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
December 11, 1958. H. N. G. Fernando, J.—
The petitioner had entered into a bond as surety for the appearance 4fthe accused in Case No. 80505 M. C. Colombo South. The case had beinfixed for trial on 3rd June 1958. The accused failed to appear on thatdate, and the Magistrate forthwith issued a Warrant for the arrest of theaccused and also noticed the petitioner. On 6th June, the petitionerappeared and was asked to show cause why her bond should not beforfeited. She then stated that the accused had been remanded on2nd June 1958 in a case pending against him in the Magistrate’s Courtof Puttalam : her position presumably was that the accused’s failure toappear on 3rd June was due to the fact that he had on the previousday been remanded into custody at Puttalam. The Magistrate doesnot hold that that the petitioner’s allegation was false, but he considersthat the petitioner should have informed him of the remand so that hemight have issued notice on the Jail authorities at Puttalam to producethe accused before him. On this latter ground, the Magistrate hasforfeited Rs. 1000 out of the security furnished by the petitioner.
With respect, I think the Magistrate has taken an unrealistic view ofthe matter. If he meant that he should have been informed of thePuttalam remand in time to enable him to secure the attendance of theaccused on the fixed date of trial (June 3rd, 1958), that was expecting theimpossible: the Puttalam remand is stated to have been ordered onlyon 2nd June. If the Magistrate meant that the petitioner should havebeen present herself on June 3rd in order to furnish information as to thewhereabouts of the accused, I think the answer is that a surety does notundertake any such obligation. The obligation of a surety relates to the
H. N. G. FERNANDO, J.—In re Anulawathie Perera
appearance of the acoused person on the due date, and the surety’s bondmust be forfeited if no good cause is shown for the failure of the accusedto appear. In other words, the surety guarantees only the conduct of theaccused, and not his own conduct. If the conduct of the accused, namelyhis failure to appear, is excusable, then there is no default of the accusedfor which the surety can be held responsible.
Upon the facts stated to the Magistrate on June 6th by the petitionerwhich were not contradicted either before him or in this Court, the failureof the accused to appear on 3rd June was due to causes completelybeyond his control and was not attributable to any desire on his part toevade trial in the Colombo case. That being so, there was no defaulton his part for which the petitioner was vicariously liable. I wouldtherefore quash the order of forfeiture made against the petitioner.
Order g nashed.
In re ANULAWATHIE PERERA