Sharma J (delivering oral judgment):

I had called for the records of Bruas Magistrate's Court arrest case No. 88 of 1970 Public Prosecutor V. Tanggaah . While going through the records I discovered that one Ramadu s/o Appanah had stood surety to the bond executed by the accused in the said criminal case. The accused failed to appear before the learned Magistrate on the 8 November 1971 and the learned Magistrate issued a warrant of arrest against him. On 13 November 1971 the learned Magistrate issued a notice to the bailor Ramadu requiring him to produce the accused at the Court of the Magistrate, Bruas, on 10 December 1971. The bailer appeared before the learned Magistrate and the record made by the learned Magistrate on that day reads as follows:

'Accused present in Court

Prosecuting Officer: Ibrahim

Accused absent: 25 October 71 - Medical Certificate. 8 November 71

Bailor: not necessary to come to Court not aware of the proceedings.

Order of the Court:

The bailor to pay $50 to the Government of Malaysia for a breach of the bail as there are two consecutive occasions of the bail being jumped.

Accused to get another bailer in the sum of $300'.

Section 443 of the Criminal Procedure Code relates to the forms which may be used for the various purposes for which they have been prescribed under the Code. The section allows their use with such variations as the circumstances may require. Form No. XLII deals, with a notice to be sent to the surety on breach of a bond. It specifically requires the bailor to pay the penalty or show cause within a specified number of days why payment of the sum should not be enforced against him. This form is to be found in the second schedule to the Criminal Procedure Code and is as much a part of the Code as any other portion of it. These forms are naturally not supposed to be exhaustive and do not override any express provision of the Code. They are, however, useful in throwing light on such sections of the Code in connection with which their use has been prescribed. The bail bond prescribed under the Code is to be found in Form III and the relevant portion so far as it relates to the surety to a bail bond reads:

I do hereby declare myself surety for the above-named of, that he shall attend before the Magistrate's Court at on the day of next, to answer to the charge on which he has been arrested, and shall continue so to attend until otherwise directed by the Court; and, in case of his making default therein, I hereby bind myself to forfeit to the Yang di-Pertuan Agong the sum of dollars.

There is no undertaking in the prescribed bond that the bailor is bound to attend the Court himself personally or to produce the accused in Court on each day of the hearing. S 404 of the Criminal Procedure Code deals with the procedure on forfeiture of a bond and that provision being of a penal nature has to be strictly construed. The Court acts without jurisdiction if it forfeits the bond without recording the grounds of proof that a bond had been forfeited. In this case, however, the bond was for the appearance of the accused before the Court and the records being. Before the Court, that is the order for bail, the bail bond and the fact that there was a failure to appear was enough to enable the Court to forfeit the bond and there need not be any further record of grounds of proof. A notice, however, had to be sent to the bailor as envisaged in s. 404(1) and as exemplified in Form No. XLII in the second schedule to the Criminal Procedure Code.

I had asked the learned Magistrate to give his grounds of decision for making the order that he did make. He has been very frank in admitting his mistake but has taken refuge under the shelter that the notice sent by him to the bailor was the only type of notice supplied to the Court by the Government Printer meaning thereby that the Court had not been supplied the forms in Form No XLII. The blame cannot be shifted to the Government Printer. The duty is c