An order of forfeiture must be passed before a show cause notice can be issued to the surety under section 446 of the Code of Criminal Procedure, 1973.

JUDGMENT - M.P. KANADE, J:---The short question involved in this revision application is as to whether without of forfeiture of a bond executed by a surety the issuance of notice of show cause will be without jurisdiction. The said question arises on the following facts of this case.

2. The petitioner, Bhoja Babu Salian, stood surety in the sum of Rs. 15,000/- for an accused, Mohammed Zamil Mohamed A. Chaudhary, in Case No. 341/PN/82. in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay. The said surety bond was executed by the petitioner on June 10,1982. It was for appearance of the accused in the said case. The accused failed to appear in the Court on June 30, 1982. On that day the learned Additional Chief Metropolitan Magistrate passed the following order :

"Accused Nos. 1 and 3 produced.

Accused No. 2 absent.

Issue non-bailable warrant against accused No. 2 and notice to surety.

R/f (that is, returnable) 6-7-82."

(bracketed portion supplied.)

In pursuance of the aforesaid order a notice to the surety was sent dated July 1, 1982, which was served on the petitioner. On the next date of hearing, that is, on July 6,1982, it is stated in the Roznama as follows:

"Accused Nos. 1 and 3 in custody.

Warrant against accused No. 2 returned unexecuted.

The case of accused No. 2 is separated.

A separated charge is framed against accused Nos. 1 and 3 under sections 467, 457, 458, 461, 472 and 419 of the Indian Penal Code. Both accused pleaded not guilty.

Issue summonses to prosecution witnesses".

The notice issued to the petitioner states as follow :

"Whereas on 10th day of June, 1982 you became surety for one Mohamed Zameer Mohammed Aktar Chaudhary (that is, the accused) of Bombay that he should appear before this Court on 30th day of June, 1982 (that is, on the date of hearing) and should continue to attend until otherwise directed by the Court and bound yourself in default thereof to forfeit the sum of Rs. 15,000/-.

And whereas the said accused has failed to appear before this Court on 30th day of June, 1982 and by reason of the said default you have forfeited the aforesaid sum of Rs. 15,000/-, you are hereby required to appear this Court on 6th day of July, 1982 at 11 A.M. (S.T.) and show cause, if any, why the payment of Rs. 15,000/- should not be enforced against you".

In pursuance of the said notice the petitioner appeared before the Court on July 6, 1982. On that day the learned Additional Chief Metropolitan Magistrate heard the advocate for the petitioner and passed the following order :

"Surety with Advocate Singh.

Surety was noticed to show cause why the order of forfeiture should not be enforced against him for failure of the accused to attend in the Court on 30-6-82. Surety has filed an application praying for time to produce the accused. The application does not show any reason for the absence of the accused on 30-6-82. As the surety has not show any cause, the bail bond is forfeited. However, I shall grant time to produce the accused by the next date. Adjd. to 20-7-82".

The next day, that is, July 20,1982, the surety (that is, the petitioner) and his Counsel were both absent, and the learned Additional Chief Metropolitan Magistrate directed to issue a distress warrant for Rs. 15,000/- against the surety.

3. Feeling aggrieved by the said order of issuing a distress warrant against him, the petitioner filed an appeal to the Court of Sessions for Greater Bombay, being Criminal Appeal No. 362 of 1982. The learned Additional Sessions Judge, Greater Bombay, dismissed the appeal, holding that there was no illegality in the order passed by the learned Additional Chief Metropolitan Magistrate. It is against this order the present revision application has been filed.

4. Shri Gyani, learned Counsel appearing in support of this petition, submitted that in the absence of an order of forfeiture the issuance of a show cause notice against the petitioner is without jurisdictions. It is argued that in the first

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