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MODDER v. ISMAIL LEBBEP. C., Colombo, 89,283
Release of. accused on bail—Bonds by accused and surety—Criminal Procedure
Code, s. 341—Forfeiture of bond' on default—Notice of forfeiture.
Where an accused was released on his entering, along with a surety, intorecognizances in accordance with section 311 of the Criminal ProcedureCode, but couched in a, special form, and where they failed to complywith the terms of the bond, though summonses were issued to them toappear, and where their bonds were thereupon declared forfeited.—
Held, that, according to the practice of the Courts, matters such asthese were dealt with in the course of the proceedings to which theywere incidental, and that, though the bond of the principal may be for-feited without noticing him .to show cause against the forfeiture, it wasabsolutely necessary to issue such notice where the surety was concerned.
HE accused was charged under section 394 of the Penal Codewith having received stolen property knowing it to have
been stolen. On conviction he appealed and was released on bailon his entering, along with the appellant as surety, into a recog-nizance in Bs. 500 to “ attend at the Police Court immediatelyafter the proceedings in the case shpuld have been returned to thePolice Court, and there surrender himself into the custody of thePolice Court, and abide the sentence which should have befenpronounced against him, and not depart without leave accordingto law.” The surety bound himself for the appearance of the.principal.
On the return of the proceedings from the Supreme Court theprincipal and surety, in spite of summonses, made default, where-upon their bonds were declared forfeited.
The surety appealed.
The case came up for argument on 27th January, 1905.
H. A. J ayawardene, for appellant.—The condition that theaccused should appear immediately after the proceedings shouldhave been returned £0 the Police Court is ultra vires, as such acondition is not sanctioned by section 341 of the Criminal Proce-dure Code. That section only requires that the appellant shouldabide the judgment of the Supreme Court; it is immaterial whenhe* does so.
Further, there was no notice to the surety requiring him toshow cause why the bond should not be forfeited, as is requiredby the judgment in D. C., Negombo, 2,805. Even if such a noticedid issue, it was not served on the appellant either personally .orby substituted service.
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Rdmandthan, S.-G., for respondent.—The words “ abide the 1*06,judgment” necessarily' imply that the stipulation is tp surrender JanMa*y 27.and (previous to surrender) to attend in Court upon the deter-mination of proceedings in the Supreme Court. These twostipulations are necessarily implied in the stipulation to ‘‘ abidethe judgment. ” Hence the stipulation to appear “ immediatelyafter the proceedings should have been returned is not ultravires of section 841 of the Criminal Procedure Code. In view ofthis stipulation no notice was necessary.
The facts of the case in D. G., Negombo., 2,805 are distinguish-able from those of the present, inasmuch as there was no special
stipulation in that case as there is here.
Cur. adv. vult.
27th January, 1905. Moncbeiff, J.—
The Police Magistrate of Colombo found one Ismail Lebbeguilty of an offence punishable under section 394 of the PenalCode. Ismail Lebbd appealed to the Supreme Court, and wasreleased on bail on entering into a bond to attend at the PoliceCourt immediately after the proceedings in the case should havebeen returned to the Police Court, and there surrender himselfinto the custody of the Police Court and abide the sentence whichshould have been pronounced against him, and not depart withoutleave according to law.
One Kader Kanni Pichche declared himself surety for IsmailJjebbe that the latter should attend the Police Court immediatelyafter the proceedings in the case should have been returned to thePolice Court from the Supreme Court on appeal, . and theresurrender himself into the custody of the Police Court and abidethe sentence which should have been pronounced against. him,and not depart without leave according to law. And he boundhimself to forfeit Es. 500 in case of default.
Mr. Jayawardene says that this surety’s bond was taken ultravires, as the Magistrate had no power to order the surety undersection 341 to be bound over in those terms. I think, however,that as the principal is bound by bis bond to do certain things onthe judgment of the Supreme Court being affirmed, the surelyfrom the very meaning of the term naturally binds himself to seethat the principal adheres to the terms of his bond.
The Supreme Court affirmed the conviction of Ismail Lebbe,but although notice was issued both to him and to his surety,neither of them was discovered until after a considerable time.
In fact the notices could not be served upon them. After theSupreme Court judgment, however, the principal, Ismail Lebbe,petitioned His Excellency the Governor on the subject.
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1906. The Magistrate, however, proceeded, upon finding that theJanuary 27. surety could not be discovered either by notice or warrant, toMoNaiunFF,the surety’s bond, and to order writs to issue for the
.recovery of the amounts due.
On the 3rd December the accused surrendered, and on thetenth of the same month the surety appeared and asked that theattachment issued against him might be recalled on the groundthat he had no notice. On a recent occasion in case No. 134D. C., Negombo, 2,805, the Chief Justice dealt with this subject,and I agreed with his judgment. He ascertained that it had beenthe practice in the District Courts, upon failure of sureties andprincipals to adhere to the terms of their bond, generally to dealwith such matters in the course of the proceedings to which theywere incidental; that it had been customary to forfeit the principal’sbond without notice, but that it had not been customary to forfeitthe surety’s bond without giving him notice and an opportunity 'of- showing cause against the forfeiture of his bond. IJow, thesurety in this case had no notice calling upon him to show causewhy his bond should not be forfeited. The only notice issued tohim, which however was not served on him, was what had been aprinted form of “ summons to a witness. ” The notice recited thatthe judgment in the case in question had been affirmed by theSupreme Court, and the surety was summoned to testify what heknew concerning the matter of the complaint, and not to departthence without leave of the Court. He was also warned that, ifhe did not appear without just excuse, a warrant would be issuedto compel his attendance. It is clear that this surety had nonotice of impending forfeiture given to him, and no opportunityof showing cause against the forfeiture of the bond. I think thatthe appeal should be allowed and the order of the Magistrate 6etaside.
MODDER v. ISMAIL LEBBE