' Mohammad Miskeen and Ghulam Sarwar have invoked revisionary jurisdiction of this Court to examine the property of the impugned order dated 29th May, 1989 of the learned District Magistrate, Mansehra whereby he accepted an appeal and, setting aside the order of the learned Sub-Divisional Magistrate, Mansehra, ordered the petitioners herein to pay the whole amount of the forfeited bond they had executed to maintain good order and peace i.e, Rs,10,000 each or in default of payment to suffer 6 months, S.I.
2. It appears that there had been litigations between one S. Zainul-Abidin and the petitioners over a piece of agricultural land which ended in a decree in favour of the said S. Zainul Abidin and against the petitioners. Pursuant to the same, the actual possession of the land in question on the spot was handed over to the decree-holder on 8th November, 1982. Later, presumably on the complaint of S. Zainul Abidin, both the petitioners were bound down on 27th November, 1982 under sections 107/151 Cr.P.C. For a period of one year to maintain good order and peace and in this regard they were called upon to and they did, furnish, bail bonds in the sum of Rs,10,000 each.
3. During this period, however, both the petitioners have allegedly committed the offences of trespass into the land, the possession whereof was taken from them and handed over to S. Zainul Abidin, and a case was registered against them vide FIR No,171 dated 17-3-1983 in police station Mansehra. They were tried and convicted by Magistrate 1st Class, Mansehra, vide his order dated 31st March, 1987; under sections 506 and 447 read with section 34 PPC and were sentenced to undergo one year R.I. And 3 months, R.I. Respectively.
4. The petitioners preferred an appeal and the learned Additional Sessions Judge, Mansehra, vide his judgment dated 21st April, 1987, maintained their convictions and sentences under section 447 read with 34, P.P.C. Only and ordered the restoration of the land in question, under section 522 Cr.P.C., to the complainant S. Zainul Abidin.
5. S. Zainul Abidin then moved an application dated 17th October, 1987 with the learned Sub- Divisional Magistrate Mansehra to the effect that the bail bonds furnished by the petitioners to maintain good order and peace has been violated by them in that they indulged in criminal activities as a result whereof they stand convicted under section 447/34 P.P.C. And hence the bail bonds of both the petitioners are liable to be forfeited and the petitioners are bound to pay penalty in the sum of Rs,10,000 each. The learned Magistrate, after conducting due inquiry, proceeded in the matter of forfeiting the bail bonds and, finding them guilty of violating the terms of the bond, ordered them to pay a penalty of Rs,200 or in default of payment to suffer one month S.I. Vide his order dated 17th September, 1988. S. Zainul Abidin called into question the aforesaid order by filing an appeal before the learned District Magistrate who, after hearing the parties, passed the impugned order dated 29th May, 1989, whereby he enhanced the amount of penalty equivalent to the full sum of the bonds executed by the petitioners.
6. I have heard Sardar Moazzam Khan, Advocate, learned counsel for the petitioners, Mr. Rashidul Haq Qazi, Advocate learned counsel, for the State and Ejaz Afzal Khan, Advocate, learned counsel for the complainant at length and also perused the record of the case with their valuable assistance.
7. It is contended on behalf of the petitioners that the learned lower appellate Court has misdirected itself by enhancing the penalty for the forfeiture of the bail bond to its full sum and its impugned order is not in conformity with the principle, having assumed the force of law, whereby it is only a fraction of the total sum of the bond which is normally paid as a penalty for the forfeiture thereof. It is further contended that the learned Sub-Divisional Magistrate was competent in law to reduce its amount and the reasons furnished by him are sufficient to justify the reduction. It is thus urged that while the impugned order of the learned Magistrate is untenable, that of the learned Sub-Divisional Magistrate merits restoration.
8. As against this the learned Assistant Advocate-General, while supporting the impugned order of the learned District Magistrate, maintained that the principle of remission or reduction of the penalty, as commonly followed in the case of sureties, for the appearance of accused person before a Court, cannot be pressed into service in the case of such a person who furnishes a bail bond under section 107, Cr.P.C. For keeping the peace. He, therefore, contended that the learned District Magistrate has rightly ordered the petitioners to pay the total sum of the bond as penalty and the impugned order is in conformity with the spirit of law in so far as it concerns the process of maintaining public tranquillity.
9. Mr. Ejaz Afzal Khan, Advocate, learned counsel for the complainant, adopted the arguments of the learned Advocate for the State.
10. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
11. The sole point that needs to be determined, thus, is as to whether any reduction in the amount of penalty, albeit for sufficient reasons, is permissible under the law after forfeiture of the bond particularly and more precisely, for maintaining peace or good behaviour.
12. True, when we refer to subsection (5) of section 415 Cr.P.C., there appears no discrimination in law in so far as concerns the remittance or reduction of penalty, as a result of forfeiture of a bond.
Yet, a distinction has to be drawn A between the principal and sureties in the case of an accused person for the purpose of availability to, and appreance before, the Court of his trial on the one hand; and the set of principal and sureties in the case of a person who enters into a bond, taking responsibility that he shall not commit a breach of the peach, on the other. Whereas in the former case a balance has to be held between undue leniency and undue severity, I am afraid, the same principle cannot be extended in the latter case invariably. For, in the matters of reducting or remitting any portion of the penalty, the discretion under section 514(5) Cr.P.C. In his favour cannot be exercised as a matter of routine and normally the person bound down for keeping the peace or for good behaviour, when commits the breach thereof, such act of his cannot be countenanced with impunity; and ordinarily his violation of the bond is bound to be visited with the forfeiture of the full amount.
13. This course will, however, be subject to certain considerations which may weigh with the Court while imposing the full penalty and which may include such unavoidable circumstances as prompted the affected person to violate the terms of his bond and commit an offence; for instance on a grave and sudden provocation or offences of purely technical nature. The foremost consideration in such a situation, therefore, would be to examine as to whether the offence committed by the person bound down to maintain peace and tranquillity of the community has disturbed the same with positive volition on his part or was he put into such compelling circumstances as to have made for him inevitable to have violated the terms of his bond by committing an offence he is charged with, tried and convicted.
14. Else, I am clear in my mind that remittance or reduction of penalty of such a forfeited bond cannot be resorted to mechanically for a short and simple reason that in the face of the very form of the bond, as given in Schedule V to the Cr.P.C. Not only the principal but the sureties, if any, as well, undertake a responsibility that the principal shall not commit breach of peace and accordingly enter into a direct bond to be responsible therefor and in case of default they bind themselves to be jointly and severely liable to pay the sum of the bond so furnished. Additionally, I am of the considered opinion that such a situation obviously would not afford sufficient reasons, as per requirement of subsection (5) of section 514, Cr.P.C., to indulge in the exercise of remitting or reducing the amount of the bond. And last but not the least, it would certainly undermine the whole purpose, and frustrate the very object, for which the bond was taken.
15. In fact, the most appropriate opportunity for agitating the point of reduction of the amount is the time when the security bond is demanded of a person and the sum is fixed therein and not at the time of passing of an order of its forfeiture. And, it can be called into question in appeal before the District Magistrate, and its propriety can be examined by invoking the revisional jurisdiction of this Court so as to take out the sting of its excessivity and render it in conformity with clause Secondly of Proviso to section 118 Cr.P.C. And thus to bring down its quantum within the means of the person so affected. In the case in hand, however, no such measures as are permissible under the law seem to have been taken by the petitioners and the bonds taken from them remained as demanded originally of the amount of Rs,10,000 each.
16. In the context of the foregoing factual and legal aspects of the matter, I find that the learned counsel for the petitioners could hardly make out a case in their favour inasmuch as their act of forcible entry into the same land the possession whereof was taken from them in due course of law, does not leave any scope to bring the said acts of their criminality within the sphere of compelling inevitability and rather tantamounts to a grave violation of the bonds they have furnished to keep peace and tranquillity. This being so, I am of the firm view that there appears no legitimate circumstance to exercise a discretion in their favour in reducing the punitive amount of the bond they are now required to pay.
17. I have, therefore, no hesitation in holding that in enhancing the penalty for forfeiture of the bonds furnished by both the petitioners, the learned District Magistrate has proceeded in right direction and his impugned order, founded as it is on well-reasoned grounds, is neither exceptional nor is such as to merit interference. Rather I find it in conformity with the law.
18. Resultantly, while maintaining the impugned order of the learned District Magistrate, Mansehra, I hereby dismiss this petition. The order of this Court dated 31st October, 1989, suspending the operation of the impugned order of the learned District Magistrate, is hereby recalled. Both the petitioners are, however, directed to pay the penalty of Rs,10,000 each in the Court of Sub-Divisional Magistrate, Mansehra within one month failing which, the law in this regard shall take its own course.
Revision .