The language of section 514 Cr.P.C. is plain and simple. It ordains that the following steps should be taken when the bond is violated:
(i) The court should, in the first instance, satisfy itself that the bond has been forfeited. In Tarni Yadav and another v. The State (AIR 1962 Patna 431) the Patna High Court observed that the word “forfeited” has not been defined in the Code of Criminal Procedure, 1898, but its plain meaning is that the condition imposed upon the executant of the bond and agreed to by him has been contravened.
(ii) When the court is satisfied that the bond has been forfeited, it should record the grounds of proof upon which it has come to that conclusion. In Tarni Yadav’s case, supra, the Divisional Bench ruled that when the bond is for appearance, all that the court has to do is to refer to its own record. It can say that the bond was executed for appearance of the accused and he did not appear on the date fixed so it is forfeited. This is sufficient to meet the legal requirement and the question as to whether the accused had any good reason for his absence does not arise for consideration at that point of time.
(iii) When the court concludes that the bond has been forfeited, it should either call upon the executant to pay the penalty or to show cause as to why it should not be paid. It is at this stage that the court has to consider the explanation for nonappearance of the accused.
(iv) If neither sufficient cause is not shown nor penalty is paid, the court may issue a warrant for attachment and sale of the movable property belonging to the executant or his estate for the recovery of that sum.
(v) If the penalty is not paid and cannot be recovered by attachment and sale, the court may imprison the executant for a specific term upto six months.
In his treatise Judicial Review of Public Actions (Second Edition, Vol.3 at p.1870) Justice Fazal Karim writes: “Natural Justice demands that (i) the applicant be informed of the nature of the case against him; and (ii) he be given a reasonable opportunity to be heard … if ‘opportunity to be heard’ is to have any value in practice, the decision maker must assign or identify the reasons for any adverse decision. Thus, the right of hearing and the duty to give reasons are related, one with the other, and failure to give reasons is, where there was duty to give reasons, treated as a breach of natural justice.” Section 514 Cr.P.C. should be examined in the light of this principle and it must be laid down that when the court imposes penalty on the person bound by the bond it should set out the factors that it has taken into consideration for determining its quantum and, if the penalty is not paid, it should give reasons for prescribing the period of imprisonment. Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, also supports this formulation inasmuch as it guarantees the right to fair trial and due process as a fundamental right.
Grant of bail is an essential part of the system of administration of justice. We may recall that in Dildar and another v. The State (PLD 1963 SC 47) the Hon’ble Supreme Court of Pakistan held: “Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing overcrowding in the available spaces of the prisons. Therefore, in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance.”
Criminal Appeal No. 411 of 2022
Muhammad Rasheed Vs. The State etc.
Date of hearing : 21.07.2022
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