SOERTSZ J.—Perera v. Muthalib.
1941Present: Soertsz J.PERERA v. MUTHALIB.M.C. Gampaha, 20,715.
Forfeiture of bond—Suretyfor accused—Inquiry before forfeiture—Notice to
surety—Thepowers of the Supreme Court inrevision—Criminal
Procedure Code, s. 411 (1),—
Where aperson hasboundhimselfas suretytoa bond entered h-an
accused “ toattendat theMagistrate’s Courtimmediately ■ afj^irthe
proceedingsinthe case havebeenreturnedtothat Court fromthe
Supreme Court after appeal and there surrender ”,—
Held,thattheMagistrateis bound, before making anorderforfeiting
the bond, to hold an inquiry and satisfy himself that the bond has been.foreitedandtogive' noticeand an opportunity tothesuretyto show
cause against the forefeiture.
Therevisionarypowers ofthe Supreme Court arenotlimitedto those
cases in which no appeal lies or in which no appeal has for some reasonbeen taken.
TheCourt would exercise those powers wheretherehasbeen a
miscarriageof justiceowingto theviolationofa fundamental ruleof
'f | ’l HIS was an application to revise an order made by the Magistrate ofJL Gampaha.
W. Perera in sunport.
T.S. Fernando, G.C., lot Attorney-General.
Cur. adv. vult.
August 23, 1944. Soertsz J.—
Tins is an applieaton for the exercise of the revisionary powers of thisCourt in respect of an order made by the Magistrate of the Gampaha•Courts, on June 16, 1944, forfeiting the full amount of a bond by whiohthe petitioner, who was the surety for an accused party, had boundhimself for the due performance by that accused party of certain condi-tions imposed upon him by the bond.
Crown Counsel by way of a preliminary objection, contended that,the petitioner having had a right of appeal from such an order as wasmade in this case and having omitted to avail himself of that right, isnow debarred from making the present application for revision inasmuch-as—so he said—the extraordinary jurisdiction of revision is exercisedin cases in which there was no other remedy. He relied on the case ofGunasehera v. Jayaratna 1 in which it was pointed out that there was aright of appeal from an order forfeiting the bond of a surety. Thattilling amply justifies the first part of the Crown Counsel s contention.In regard to the second part of his contention, namely, that the petitioneris not entitled to revision because he failed to exercise hs right of appeal,
Sal. Rep. 154.
SOERTSZ J.—Perera v. Muthalib.
would invite attention to the observations made by Wood-Renton J-in the King v. Nordeen *. He said: —
“ I do not think that that power (i.e., revisionary power) is at all limitedto those cases in which either no appeal lies or for some reason or otheran appeal has not been taken ”, but he went on to add that this powerwould be exercised only when a strong case is made out ‘' amountingto a positive miscarriage of justice in regard to either the law, or thejudge's appreciation of the facts In the case I am dealing with Ishould have felt compelled to give relief solely on the ground that whatmay well be said to be a failure of justice has been brought to the noticeof this^ Court, and technical rules must make way for the granting ofredress in such a case. There has been a violation of the fundamentalrule of judical procedure that a person sought – to be affected by anorder shall first be heard. But, in this instance there is yet another groundupon which this application for revision ought to be exercised and thatis that the petitioner had no knowledge of the order made against himtill the time for pi-eferring an appeal had elapsed. I over-rule thepreliminary objection.
On the merits the petitioner has a strong case. By the bond theaccused entered into, he bound himself “ to attend at .the Magistrate’sCourt …. immediately after the proceedings in the case ….been returned to the said Magistrate’s Court from the Supreme Courtafter appeal and there surrender The petitioner on his apart boundhimself as surety for the due performance of that condition by the accused.
Now, it is true that the obligation undertaken by the accused and hissurety is not absolutely impossible of performance but, it is so onerousan obligation that in a commonsense view of the matter, it may beregarded as reasonably impossible. It could have been fulfilled if atall, only by constant attendance in the Magistrate’s Court in the interval.between the listing of the appeal and of the record being received backin the Magistrate’s Court. There is good reason for doubting that theaccused and his surety appreciated that that was the extent of theirundertaking even if we presume that the terms of the bond were explainedto them. The later journal entries show that they were expecting to be* ‘ noticed ’ ’ and that they understood that they were to appearimmediately on being noticed.
In the case of Modder v. Ismail Lebbe 2 the accused and his surety•entered into a similar bond. On the return of the proceedings from theSupreme Court, both of them made defaults in spite of summonses andthereupon their bonds were declared forfeited. Moncrieff J. in allowingthe surety’s appeal said that “ it had not been customary to forefeitthe surety's bond without giving him notice and an opportunity of showingcause against the forfeiture of the bond ”. The case under considerationis a stronger case than that ease for the surety, here, received no summonsor notice of any kind. If I may say so with great respect Moncrieff J.might have put the matter higher than he did when he said that it hadnot been customary to forfeit the bond without notice or without aRearing, for suGh a course not only violates a fundamental rule of judicial1 13 N. L. R. 115.2 8 N. L. R. 104.
Tharmalingam Chetty and Arunasalam Chettiar.
procedure, but also disregards a positive requirement of the relevantsection of the Criminal Procedure Code, section 411 (1) which providesthat—
Whenever it is proved to the satisfaction of the Court ….that the bond has been forfeited, the Court shall record the groundsof such proof and may call upon any person bound by such bond topay the penalty .. or to show cause why it should not. be
The phrase “ whenever it is proved to the satisfaction of the court ”necessarily presupposes an inquiry. Indeed even if the words/ thathad been employed had been less cogent, for instance “ if thG courtis of opinion ”, still, inasmuch as a Judicial Officer as distinct from anadministrative officer is concerned an inquiry is a necessary conditionprecedent to the reaching of an opinion.
In this case, there was no inquiry whatever before the bond wasforfeited. What the Magistrate did was similar to putting the cartbefore the horse, for he forfeited the bond on June 16, 1944, and onJune 21, 1944, called upon the petitioner to show cause why he shouldnot pay the full amount of the bond. The whole proceeding wasmisconceived and extremely unsatisfactory. If the Magistrate’s objectwas to save time, labour, and money there were obviously much lessdrastic methods of attaining that object.
I set aside the order forfeiting the bond.
PERERA v. MUTHALIB