[IN REVISION.]

1944 Present: Soertsz J.

PERERA v. MUTHALIB.

M. C. Gampaha, 20,715.

Forfeiture of bond-Surety for accused-Inquiry before forfeiture-Notice to surety-The powers of the Supreme Court in revision-Criminal
Procedure Code, s. 411 (1),-

Where a person has bound himself as surety to a bond entered by an accused " to attend at the Magistrate's Court immediately after the proceedings in the case have been returned to that Court from the Supreme Court after appeal and there surrender ",-

Held, that the Magistrate is bound, before making an order - forfeiting the bond, to hold an inquiry and satisfy himself that the bond has been forfeited and to give notice and an opportunity to the surety to show cause against the forefeiture.

The revisionary powers of the Supreme Court are not limited to those cases in which no appeal lies or in which no appeal has for some reason been taken.

The Court would exercise those powers where there has been a miscarriage of justice owing to the violation of a fundamental rule of judicial procedure.

THIS was an application to revise an order made by the Magistrate of Gampaha.

E. W. Perera in support.

T. S. Fernando, C.C. for Attorney-General.

Cur. adv. vult.

August 23, 1944. SOERTSZ J.-

This is an application for the exercise of the revisionary powers of this Court in respect of an order made by the Magistrate of the Gampaha Courts, on June 16, 1944, forfeiting the full amount of a bond by which the petitioner, who was the surety for an accused party, had bound himself for the due performance by that accused party of certain conditions imposed upon him by the bond.

Crown Counsel by way of a preliminary objection, contended that, the petitioner having had a right of appeal from such an order as was made in this case and having omitted to avail himself of that right, is now debarred from making the present application for revision inasmuch as-so he said-the extraordinary jurisdiction of revision is exercised in cases in which there was no other remedy. He relied on the case of Gunasekera v. Jayaratna [1 Bal. Rep. 154] in which it was pointed out that there was a Tight of appeal from an order forfeiting the bond of a surety. That ruling amply justifies the first part of the Crown Counsel's contention. In regard to the second part of his contention, namely, that the petitioner is not entitled to revision because he failed to exercise his right of appeal,

I would invite attention to the observations made by Wood-Renton J. in the King v. Nordeen [1 13 N.L.R. 115.]. He said:-

"I do think that that power (i.e., revisionary power) is at all limited to those cases in which either no appeal lies or for some reason or other an appeal has not been taken", but he went on to add that this power would be exercised only when a strong case is made out "amounting to a positive miscarriage of justice in regard to either the law, or the judge's appreciation of the facts". In the case I am dealing with I should have felt compelled to give relief solely on the ground that what may well be said to be a failure of justice has been brought to the notice of this Court, and technical rules must make way for the granting of redress is such a case. There has been a violation of the fundamental rule of judicial procedure that a person sought to be affected by an order shall first be heard. But, in this instance there is yet another ground upon which this application for revision ought to be exercised and that is that the petitioner had no knowledge of the order made against him till the time for preferring an appeal had elapsed. I over-rule the preliminary objection.

Now, it is true that the obligation undertaken by the accused and his surety is not absolutely impossible of performance but, it is so onerous an obligation that in a commonsense view of the matter, it may be regarded as reasonably impossible. It could have been fulfilled if at