JUDGMENT
Banerjee, J.
1. The petitioners were called upon by the Deputy Magistrate of Mymen singh under Section 514 of the Code of Criminal Procedure to show cause why the bond executed by them as sureties for Ram Kant Chango and Hara Charan Chango keeping the peace for one year should not be forfeited, and why they should not each pay the amount of the bond (Rs. 100), when the said Rama Kanta Chango and Hara Charan Chango had been convicted of an offence under Section 324 of the Indian Penal Code. The petitioners showed cause, but their objections were overruled, and the Deputy Magistrate without recording any evidence declared on the 7th May 1897 that the bonds were forfeited; and that order was affirmed on appeal by the Magistrate of the district on the 27th of June 1897, with this modification, that the amount forfeited in each case was reduced to Rs. 50.
2. The learned Sessions Judge of the District recommends that the orders of the District Magistrate and the Deputy Magistrate be reversed for three reasons: first, because they were made without taking any evidence in the presence of the petitioners; secondly, because the execution of the bond by the petitioners was neither admitted or proved; thirdly, because the principal parties not having been proceeded against, the sureties could not be made liable.
3. In support of the first reason the cases of Empress v. Nobin chunder Dutt (1879) I.L.R. 1 Cal. 865 and In the matter of Mohesh Chunder Roy, [(1882) 10 C. L. R., 571,] axe relied upon by the Sessions Judge. Though the facts of the two cases referred to are different from those of the present, the principle upon which they are based is, I think, applicable to this case, and no order declaring the forfeiture of a bond can be made against any party unless the ground of forfeiture is established by evidence, which is taken in the presence of such party, or is otherwise admissible against him. The mere fact of the persons for whom another stands surety being convicted of a breach of the peace ought not to be sufficient to make the surety bond executed by the latter liable to forfeiture, without any evidence taken in the presence of the surety to show that the forfeiture has been incurved.
4. It is true that Section 514 of the Code of Criminal Procedure by enacting that “whenever it is proved to the satisfaction of any Court by which a bond under the Code is taken that such bond has been forfeited, it shall record the grounds of such proof, and it may call upon any person bound by such bond to pay the amount or to shew cause,” indicates that the evidence upon which the Court is satisfied that a forfeiture has been incurred and that the person bound by the bond should be called upon to pay or to shew cause, may be taken in the absence of such person, but that does not show that the final order making him liable can be made without taking any evidence in his presence or giving him any opportunity of cross-examining the witnesses on whose evidence the forfeiture is held to be established. Where the bond is given by the person bound down to keep the peace, the judgment convicting him of a breach of the peace is admissible in evidence against him, and may form a sufficient basis for an order under Section 514, he having had an opportunity of cross-examining the witnesses on whose evidence the forfeiture is held established. So also in a case in which a surety bond is given on condition that it shall be forfeited if the person for whom it is given is convicted of a breach of the peace, the judgment in the case in which such person is convicted would be admissible in evidence against the surety under Section 43 of the Evidence Act as evidence of the fact of conviction, which is a relevant fact in the case.
5. But where, as in this case, the bond is given by a surety, and the condition in the bond is that it shall be forfeited, not if the principal party is convicted of a breach of the peace, but if he commits a breach of the peace, the judgment convicting the principal of a breach of the peace is no evidence under the Evidence Act (see Section 43) against the surety who was no party to it, to prove that the party bound down to keep the peace has really committed a breach of the peace. Such fact must be proved by evidence taken in the presence of the surety, unless it is admitted by him. There has been no such evidence taken in this case, nor is the fact of a forfeiture having been incurred admitted. That being so, the order complained of must in my opinion be set aside, and the amount, if realized, refunded.
6. In this view of the case it becomes unnecessary to determine the other two points raised in the reference. I may add, however, that the second ground is not tenable, the execution of the bond having been admitted in the argument as pointed out in the explanation of the Deputy Magistrate. Nor is there any force in the third reason. The mere fact of the principal party not being proceeded against is no ground for holding that the surety is discharged.
Wilkins, J.
7. I am of the same opinion. Before it can be declared that a bond executed by a surety is forfeited under Section 514 of the Criminal Procedure Code, there must be a formal finding arrived at after taking evidence in the presence of such surety, which evidence must prove that the principal person has so acted as to necessitate or render it advisable that the surety should by reason of the act of the principal forfeit his bond. The mere production of the original record or of a certified copy of the original record of the trial in which the principal had been convicted of breaking the peace within the period covered by the bond, would not be conclusive, if indeed it would be any evidence against the surety in a proceeding under Section 514 of the Criminal Procedure Code. The proceedings are judicial proceedings, and an order of forfeiture under Section 514 can be made only after a proper judicial enquiry and upon legal evidence recorded in presence of the surety.