Case No.:

(AC-Cr. Revision-259-1959)

Court:

The High Court

Issue No.:

1960

Principles

·  Criminal Procedure—Procedure on forfeiture of bond—Code of Criminal Procedure. S. 299, s. 261—Form of notic to bailor—Form of bond—Code of Criminal Pro cedure. Third Schedule, Nos.24 and 19

The applicant, Abdel Rahman Mirghani, entered into a bond to produce a certain accused. The accused failed to appear on the date fixed for the nial. The applicant (bailor) was arrested and brought before the police magistrate. Omdurman, who treated the case as a criminal information, tried the applicant non-summarily and ordered him to pay £S.150, part of the penalty imposed by the bond and in default of payment the applicant was to be nrfprisoned for four months.
The Province Judge confirmed the order. On application to the Chief to et aside the order:
Held: (i) Proceedings under the Code of Criminal Prjcedure. s. 299, are civil in nature.
(ii) The facts of the case should be brought to the notice of the magisterate in the form of an application and not a criminal lnforasation. Aftor sdlufylflg itself that the bond was forfeited the court should ask the surety to show cause why he should not pay the penalty. i.e., the court should give the surety an opportunity to submit any defence open to him either for cancelling the for feiture or in mitigating the penalty. The terms of the bond must be In accordance with from 19. Schedule Ill, Code of Criminal Procedure. The bond must contain the time, the place and the court of appearance. Failure to observe the strict formalities is fataL.
Abulela Mohamed Ghalib v. The Police (PS-HC-1952) and Sujan Kumcr Seal v. The King, A.I.R. 1955 N.U.C. 574 applied.
(iii) When default is made in payment the magistrate should order the attachment and sale-of the defaulter’s moveable property. He cannot forthwith direct imprisonment, much less direct imprisonment in default of payment.
Magistrate’s -order in Non-Summary Case No. 379/1959 quashed and penalty refunded.

Judgment

(HIGH COURT)

EL ALIM ABDEL RAHMAN MIRGHANI v. SUDAN GOVERNMENT

(AC-Cr. Revision-259-1959)

Criminal revision

Advocate: Abdel Rahman Yousif……. for applicant

January 11, 1960. Abdel Mageed Imam I. (by the authority of the Chief Justice): —This is an application submitted on behalf of El AIim Abdel Rahman Mirghani, surety to bond No. 682 dated September 21, 1959, against the order of the learned Province Judge dated November 9, 1959, confirming the order of Police Magistrate, Omdurman, in Non-Summary Case No. 379/1959 in which he declared the said bond to have been for feited and consequently ordering the said surety to pay a sum of £S.150 part of the penalty imposed by the said bond, and in default of payment to be imprisoned for four months.

It is observed from the outset that the learned magistrate was not right in treating the matter as a criminal case and applying non-summary proce dure. Such proceedings as, come under the Code of Criminal Procedure, S. 299, are of a civil nature and the procedure to be followed is clearly laid down therein—see Abulela M Ghalib v. The Police (Port Sudan High Court, 5952) and Sujan Kumar Seal v. The King, A.I.R. 1955 N.U.C. 74 (Vol. 42)

The procedure as set out in the above High Court appeal, which is in conformity with the correct interpretation of section 299 above-mentioned, is as follows:

“(a) The facts of the case are brought to the notice of the magistrate in the form of an application and not as a criminâlinformation.

(b) These facts are then inquired into by the magistrate and if he is satisfied that the bond is forfeited, he makes a declaration to that effect and then passes an order calling upon the surety either to pay the penalty or to appear and show cause, if any he has, why he should not pay such penalty. This will be in the nature of an ex parte order, and should be conveyed to the surety in the prescribed form of notice (Third Schedule. No. 24) and not by way of arrest.

(c) If the surety fails to appear or if he appears but fails to show cause, the court then proceeds in accordance with subsections (2)—(4) of section 299 of the Code of Criminal Procedure.”

The essence of this procedure can be summed up in two points: (a) The court must satisfy itself that the bond was forfeited, i.e., that there was no compliance with the conditions of the bond, e.g., in the case of forfeiture for non-appearance, that the accused did not appear which is obviously simple for the court to ascertain and that this was contrary to the terms of a legal bond executed according to law; and (b) after thus satisfying itself that the bond was forfeited, the court should ask the surety to show cause why he should not pay the penalty, i.e., the court should give him an opportunity to submit any defences open to him towards cancelling altogether the bond and consequently the order of forfeiture or in mitigation and remittance of the penalty. Departure from the above procedure may be fatal, read with the Code of Criminal Procedure, s. 261, to any order purporting to have been made under the Code of Criminal Procedure. s. 299, as will be explained hereunder.

It is clear from the record that the accused was released upon entering into a bail bond on September 21, 1959—see Case Diary No. 111/21, p. 9— and after the investigation was closed and before the magisterial inquiry had started on September 23, I959 The court should have used Form No. 20—see Third Schedule, Civil Justice Ordinance—or any other form which shows clearly and substantially the terms of the bond. This was not done—see true copy attached. This bond does not even disclose that it was undertaken to bring the accused to court. What court, what time and place are not shown. This renders the bond illegal.

“The terms of a bond or bail-bond executed under this section should be in accordance with form No. 42 of Schedule” (equivalent to our form No. 19). “That form indicates what the contents of a bond with sureties should be. In order to be enforceable a bail-bond must be in accordance with these forms. Otherwise the person executing the same incurs no legal liability by executing it” : see lyer, Code of Criminal Procedure (11th ed., p. 1790), and “A bail-bond must contai the time and place of appear ance”: 1885 A.W.N.44 . “Section 499” (equivalent to our section 292 of the Code of Criminal Procedure) “states that the time and place at which the accused is to appear must be mentioned in the bond . . .. Where therefore there is no mention in the surety bond of the court (and for that matter the time and place) in which the accused is directed to appear and all that is mentioned is that the surety undertakes to produce accused in the court at B till the decision, it is impossible to eiiforce a vague and slovenly bond of this character. What the surety himself thought about his liability under the bond is immaterial, for the terms of the surety bond have to he determined by the “Inguage used in the bond itself”: ibid.pp . 18o9-1810 The bond in question is vague and slovenly. It is no wonder therefore that the investigati e officer (see his Summary Case Diary No. 547) thought that the grour I for forfeiture was the surety’s failure to produce accused before the ii court at Omdurman, while his appearance was required before a major court sitting at Khartoum.

Again it is essential, as stated above, that the accused must be called ujon to show cause why the bond should not be forfeited and failure by the court to do so will vitiate any forfeiture if such order results in an in to the accused..

Failure to follow the procedure laid down in section 514” (equiva lent to our Code of Criminal Procedure, s. 299) “ will not be sufficient to render the order of forfeiture illegal where it has not occasioned any lailure of justice.

In this case grave failure of justice was inflicted on the surety. H was illegally arrested and detained in custody for several days. it seems that this harsh treatment resulted from the gravity of the charge for which the accused was to stand his trial. This is surely a ground to be given consideration in looking into the question of awarding bail, but it is irrelevant, contrary to what the learned Province Judge thought, in deciding the grounds for forfeiture and assessment of penalty.

The above reasons are enough for cancelling the order of forfeiture. It can be added however that the penalty was excessive, contrary to section 296 (1). Civil Justice Ordinance, as appears from evidence on behalf of applicant. The penalty passed, after t remittance allowed by the court, is out of all proportion to applicant’s ability and by following the wrong procedure and keeping applicant in custody, an opportunity was Lost to him to produce accused within a reasonable time, a ground which v’ ould have entitled him to full remission: see Iyer, p. 1848.

It must also be stated that the order of imprisonment in default is:

“When default is made in payment, the magistrate should order the attachment and sale of the defaulter’s moveable property. He cannot forth with direct imprisonment much less direct imprisonment in default of payment”: ibid. p. 1848.

For the above reasons explained the orders of the police magistrate, )mdurman, dated October 24, I959 of fine and imprisonment in lieu are Incelled, and the penalty collected from applicant is to be refunded.

                                                                                  (Application allowed)