Ghulam Mehdi vs State Of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 21 April, 1959

Coram: S. Jafer Imam, J.L. Kapur

In the present appeal, which was taken up on a certificate issued by the High Court of Rajasthan, the principal question was whether the order that forfeited the bail bond executed by the appellant was lawful. The bail bond in question had been furnished for the release of an accused named Salamat Ali, who was being tried under Section 409 of the Indian Penal Code. The bond was set at a sum of ten thousand rupees and was executed by three individuals acting as sureties: the appellant Ghulam Mehdi, along with Dost Mohammad and Raghubir Singh. Each of these sureties undertook to produce Salamat Ali whenever and wherever his presence was required, and they were made jointly and severally liable to pay the full amount of the bond if the accused failed to appear. Their liability extended to their persons and to all their property, thereby ensuring that the bond could be realized from either their personal assets or any other holdings they possessed.

The proceedings against Salamat Ali initially began before the Court of the Sub-Divisional Magistrate but were transferred on 3 September 1951 to the Court of an Extra Magistrate. Salamat Ali continued to attend that Court until 31 December 1951, when he absented himself from the proceedings. Consequently, the Extra Magistrate initiated action under Section 514 of the Code of Criminal Procedure. In the first step, Dost Mohammad received a notice under Section 514(1) calling upon him to show cause why the bond of ten thousand rupees should not be ordered to be paid and why the amount should not be recovered from him. Although he appeared before the Court, he offered no satisfactory cause, leading to the forfeiture of the bond against him. No money was actually recovered, and he was sentenced to six months’ imprisonment in a civil jail. Later, on 13 February 1952, a notice was issued to the appellant Ghulam Mehdi requiring him to show cause why his portion of the bond should not also be forfeited and why the amount should not be recovered from him. The process to serve this notice was first entrusted to Head Constable Ramchander, who was unable to effect service. Subsequently, Head Constable Bhairon Lal was directed to serve the notice, but he likewise failed to accomplish service, and no notice was affixed to the appellant’s residence door nor delivered to any of his relatives as mandated by Sections 70 and 71 of the Code of Criminal Procedure. On 26 February, the Public Prosecutor moved before the Sub-Divisional Magistrate for attachment of the appellant’s properties. The Magistrate, without providing any notice to the appellant, ordered the attachment. The appellant then filed an appeal under Section 515 of the Code of Criminal Procedure in the Court of the District Magistrate at Bharatpur, challenging the legality of the forfeiture order on several grounds. That appeal was dismissed, prompting the appellant to seek a revision before the High Court. The High Court affirmed the order of forfeiture and, concerning the alleged lack of notice under Section 514(1), held that even if notice had been served, it would not have served any useful purpose because the accused had absconded and taken refuge in a foreign country, namely Pakistan, thereby rendering the point of raising a procedural defect inapplicable to the petitioners.

In this case the Court observed that the petitioners could not rely on the defence that they were unable to fulfil the terms of the surety bond because the accused had fled the country and was residing in Pakistan. Consequently the Court held that this circumstance did not permit the petitioners to escape liability. The appellant then made an application under Article 134(1)(c) and raised two specific points for consideration, both of which formed the basis for the issuance of a certificate. The first point alleged that the bond was vague because it did not state the particular court or the specific place where the accused, Salamat Ali, was required to be produced. The second point contended that no notice had been served on the applicant pursuant to Section 514 of the Code of Criminal Procedure. The Court explained that it was unnecessary to examine the first point in detail because the essential issue lay in the absence of notice under Section 514(1). The Court then set out the relevant statutory provisions, stating that Section 514(1) requires the court that took the bond, or a court of a Presidency Magistrate or a first-class Magistrate, or the court before which the bond was given, to record the grounds for finding the bond forfeited and to call upon any person bound by the bond to either pay the penalty or to show cause why the penalty should not be paid. Section 514(2) further provides that if sufficient cause is not shown and the penalty remains unpaid, the court may proceed to recover the amount by issuing a warrant for attachment and sale of the movable property of the person or, if the person is deceased, of his estate. From these provisions the Court inferred that before a surety becomes liable to pay the forfeited bond, the surety must be given notice and an opportunity to show cause why the amount should not be paid; only if the surety fails to do so may the court move to recover the money. In the present matter the appellant had not been summoned to show cause why the penalty should not be paid, and therefore the procedural requirements of Section 514 had not been complied with. The Court emphasized that before any penalising action can be taken, the law mandates that the surety be afforded the chance to be heard, and the failure to do so rendered the proceedings unlawful. Accordingly, the Court concluded that the magistrate could not lawfully attach the appellant’s property without first issuing a proper notice and providing the appellant an opportunity to show cause. On this basis the Court allowed the appeal, set aside the order of attachment, and directed that the attachment be cancelled.