MODDER v. ISMAIL LEBBE

MODDER v. ISMAIL LEBBE

P. C, Colombo, 89,383

Release of. accused on bail-Bonds by accused and surety-Criminal Procedure Code, s. 341-Forfeiture of bond on default-Notice of forfeiture.

Where an accused was released on his entering, along with a surety, into recognizances in accordance with section 341 of the Criminal Procedure Code, but couched in a, special form, and where they failed to comply with the terms of the bond, though summonses were issued to them to appear, and where their bonds were thereupon declared forfeited,-

Held, that, according to the practice of the Courts, matters such as these were dealt with in the course of the proceedings to which they were incidental, and that, though the bond of the principal may be forfeited without noticing him to show cause against the forfeiture, it was absolutely necessary to issue such notice where the surety was concerned.

THE accused was charged under section 394 of the Penal Code with having received stolen property knowing it to have been stolen. On conviction he appealed and was released on bail on his entering, along with the appellant as surety, into a recognizance in Rs. 500 to " attend at the Police Court immediately after the proceedings in the case should have been returned to the Police Court, and there surrender himself into the custody of the Police Court, and abide the sentence which should have been pronounced against him, and not depart without leave according to law." The surety bound himself for the appearance of the principal.

On the return of the proceedings from the Supreme Court the principal and surety, in spite of summonses, made default, whereupon their bonds were declared forfeited.

The surety appealed.

The case came up for argument on 27th January, 1905.

H. A. Jayawardene, for appellant.-The condition that the accused should appear immediately after the proceedings should have been returned to the Police Court is ultra vires, as such a condition is not sanctioned by section 341 of the Criminal Procedure Code. That section only requires that the appellant should abide the judgment of the Supreme Court; it is immaterial when he does so.

Further, there was no notice to the surety requiring him to show cause why the bond should not be forfeited, as is required by the judgment in D. C, Negombo, 2,805. Even if such a notice did issue, it was not served on the appellant either personally .or by substituted service.

Ramanathan, S.-G., for respondent.-The words "abide the judgment " necessarily imply that the stipulation is to surrender and (previous to surrender) to attend in Court upon the determination of proceedings in the Supreme Court. These two stipulations are necessarily implied in the stipulation to " abide the judgment. " Hence the stipulation to appear " immediately after the proceedings should have been returned " is not ultra vires of section 341 of the Criminal Procedure Code. In view of this stipulation no notice was necessary.

The facts of the case in D. C, Negombo, 2,805 are distinguishable from those of the present, inasmuch as there was no special stipulation in that case as there is here.

Cur. adv. vult.

27th January, 1905. MONCREIFF, J.-

The Police Magistrate of Colombo found one Ismail Lebbe guilty of an offence punishable under section 394 of the Penal Code. Ismail Lebbe appealed to the Supreme Court, and was released on ban on entering into a bond to attend at the Police Court immediately after the proceedings in the case should have been returned to the Police Court, and there surrender himself into the custody of the Police Court and abide the sentence which should have been pronounced against him, and not depart without leave according to law.

One Kader Kanni Pichche declared himself surety for Ismail Lebbe that the latter should attend the Police Court immediately after the proceedings in the case should have been returned to the Police Court

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