This is a reference made by the Ist Additional Sessions Judge, Hyder--abad, recommending that the order dated 6-5-1970 passed by the Assistant Commissioner, Saddar, Sub-Division, Hyderabad as well as order dated 18-5-1970 passed by the Additional District Magistrate, Hyderabad, may be quashed.
2. The facts, forming the background of this reference are that the applicant stood surety in a sum of Rs. 10,000 for the appearance of one Masood Noorani against whom a case under section 107, Cr.
P. C, was pending trial in the Court of Assistant Commissioner, Saddar, Sub-Division, Hyderabad.
Masood Noorani failed to attend the trial Court on 28-3-1970, hence a show-cause notice was issued to the applicant calling upon him to explain as to why the amount in bent bond submitted by him should not be forfeited. This notice was replied on 6-5-1970 but the learned Assistant Commissioner did not feel satisfied with his explanation and imposed a penalty of Rs. 10,000 being equivalent to the entire amount of surety. It was against the imposition of this penalty that the applicant filed an appeal to the Additional Deputy Commissioner and A. D. M., Hyderabad, under section 515, Cr. P. C. Who rejected the same and upheld the orders of the trial Court. The applicant next moved the Ist Additional Sessions Judge, Hyderabad who has made the present reference.
3. The learned Sessions Judge, Hyderabad has made this recommenda--petition on the appreciation of fact that the Medical Certificate produced in respect of Masood Noorani's absence on 28-3-1970 was not taken into consideration; no enquiry was made to ascertain as to whether the absence of Masood Noorani on 28-3-1970 was due to circumstance beyond his control or he had actually absconded, and that there appeared to be an interpolation so as to make the bail bonds which were in fact executed for a sum of Rs. 1,000 to appear for a sum of Rs. 10,000.
The law points raised before him were that the Asstt. Commissioner did not record any grounds justifying the passing of the impugned order which was against the law laid down in the case reported in 1968 Criminal Law Journal 782 wherein it was held that in the event of failure to record the grounds justifying the order of the forfeiture of bond of the surety the forfeiture was illegal. He further relied on the case reported in: PLD 1965 Kar. 516 and was of the opinion that the impugned orders were further illegal because the Court below did not first declare the forfeiture of the bond or recorded any grounds for such a finding before issuing notice to the surety.
4. I have examined the case and heard the parties. Admittedly, in this case no enquiry was made to ascertain as to whether the absence of Masood Noorani on 28-3-1970 was due to circumstances beyond his control or he had actually absconded to avoid appearance before the Court. In the absence of such an enquiry the order imposing the penalty, is patently illegal. It is also manifest from the record that the trial Courts did not first declare forfeiture of the bond nor recorded the grounds for finding that forfeiture of bonds was justified under law before issuing notice to the surety. The order whereby penalty was imposed is therefore, illegal on this score as well.
5. The learned Additional District Magistrate, while deciding the appeal, did not consider the points mentioned above. He also failed to give a finding on the allegation that there was interpolation and additions in the original bail bonds and the amount of Rs. 1,000 which was originally the amount in the bail bonds was converted to Rs. 1,000. The lower appellate Court therefore, absolutely failed to discharge its bounden duty of deciding the points raised before it which were very material for the purposes of decision of the case.
6. The learned Assistant Advocate-General appearing for the State has conceded that the order of the Assistant Commissioner, Saddar Sub---Division, Hyderabad, who forfeited the bonds as well as the order of the Additional District Magistrate, Hyderabad who heard the appeal was illegal.
7. For the foregoing reasons I quash the order dated 6-5-1970 passed by the Assistant Commissioner, Saddar, Sub-Division, Hyderabad as well as the order dated 18-5-1970 passed by the Additional District Magistrate, Hyderabad and allow the reference. In case the amount of penalty has been deposited by the applicant in the Court the same may be refunded to him.