067-NLR-NLR-V-26-BROWN-v.-PACKEER.pdf
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Present ; Ennis and Schneider JJ.BBOWN «. PACKEER,
633—P. C. Kandy, 22,049.
Bailbond—Forfeitureagainstsurely—Notice to accused in default—
Criminal Procedure Code, s. 941.
Where a surety has entered into a bond conditioned- for theappearance of an accused person to abide the judgment in appeal,and where the accused had absconded and could not be served withnotice of the judgment.
Held, that thesurety’sbond may beforfeited, although the
accused had not been served with notice of the judgment.
Murugiah v. Muttiah 1 overruled.
T
HIS case was referred by Enn'is J. to a Bench of two Judges.
It was an appeal by a bailsman who had entered into a
recognizance for the release of an accused person pending an appealfromhisconviction. After thejudgment inappeal unsuccessful
attemptswere made toservethe accusedwith notice; there-
after a warrant was issued against him several times and wasunexecuted. The surety’s bond was then forfeited by the PoliceMagistrate, and it was contended on his behalf that such forfeiturecould not be effected until the accused has been served with noticeof the decision in appeal.
Garvin, for appellant.
M. W. if. de Silva, C.G., for Crown.
November 21, 1924. Ennis J.—
This was an appeal by a bailsman whose bond had been forfeited.He entered into a recognizance for the release of an accused personpending an appeal. It was argued that a bond could not beforfeited without notice to the accused, and it was also argued thatin default of such notice the accused had committed no default.This argument was founded on the case of Murugiah in Muttiah(supra). In view of that case I referred this appeal to a Court oftwo Judges. A closer examination of that case seems to indicatethat the headnote is too wide. In that case the fact that no noticehad been served on the accused was merely one detail, 'among others,to show that there had been no wilful default by the accused.
1 Wijewardene Reports 9.
1924.
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1324.The present case is not on all fours with it. In this case two-
Eiqos J. attempts were made to serve the accused: with notice, and five
. attempts made to arrest him on a warrant, all of which were
F^ew unsuccessful. The learned Magistrate took this as showing thatthere was a wilful default. We have now been referred to the caseof Modder v. Ismail Lebbe 1 which seems to show that the custom ofthe Court has been to forfeit the bond of the principal without notice,and to forfeit the surety's bond on giving the surety notice andgiving him an opportunity of showing cause against the forfeiture.In this case the appellant himself is the surety and has had notice.By inference from the custom it would seem that the principalcommits a default by not abiding by the judgment of the AppealCourt, and the fact that he has not been noticed has no bearingon a consideration of that bond. Since the case has come up onappeal, Mr. Garvin, for the appellant, has found another argument,namely, that the bond is not in order under section 341 of theCriminal Procedure Code. With that contention I am not inaccord. Section 341 provides that an accused may be releasedon bail in entering into a recognizance in one or more sureties.Arecognizance according to Wharton'sLaw Lexicon is an
acknowledgment of a debt owing to the Crown with a conditiontobe void, if the recognizor shall dosomeparticularact,as if he
orthe party for whom he is surety,shallappear attheassize to
prosecute a person, or to come up for judgment when called upon,or shall prosecute an appeal. In other words a recognizance can beentered into by a surety. The bond in the present case is in theprescribed form, and is entered into both by the accused and thesurety, and under that bond theybothincurredaparticular
obligation. A recognizance is not the same as security in a civilcase, and there is no provision in the Criminal Procedure Code thatthe property of the accused shall be discussed before forfeiture of'the bond.
I would dismiss the appeal.
. Schneider J.—I agree.
Appeal dismissed.
1 {1905) 8 N. L. J2.104.