093-NLR-NLR-V-74-E.-G.-PODIAPPUHAMY-Appellant-and-H.-M.-SENEVIRATNE-Respondent.pdf
SJRTMANE, J.—Podiappuhomy v. Sencviratne
367
1971Present: Sirimane. J
E. G. PODIAPPUHAMY, Appellant, and H. M. SENEVIRATNE,
Respondent
S. C. 395/70—M. C. Avissaicella, 94442
Criminal Procedure Code—Section 411 (I)—Surely—Pond for appearances ofaccused in Court—Procedure on forfeiture.
When n person has executed a bond standing surety for nn accusod person'sappoarnneo in Court, the absence of the accusod without excuse is in itself6uflicicnt prime facie proof that there has been a breach of the undertakinggiven in tho bond. Thcro are no further grounds that a Magistrate needrecord before tho surety is called upon to show cause why his bond should notbe forfeited.
Appeal from an order of the Magistrate’s Court, Avissawella.
IV. Athulathmudali, for the surety-appellant.
Sunil de Silva, Crown. Counsel, for the Attorney-General.
August 3, 1971. Shumans, J.-—
The appellant in this case stood surety for the accused in a suin ofRs. 2,000/-. The accused was consistently absent on the trial dates,and the Court then issued notice on the appellant, on whom such noticewas served not without some difficulty.
Tho appellant was given an opportunity of producing the accused*He failed to do so, and the Magistrate then called upon him to showcauso why his bond should not bo forfeited for failure to produce thoaccused.
Tho appellant stated that he had no cause to show. The Magistratethen ordered him to pay the penalty, and in default to undergo simpleimprisonment for six months.
Counsel for the surety-appellant submits that under section 411 (1)of tho Criminal Procedure Code, the Magistrate should first have recorded
3CS
Albert Singho v. The Queen
the grounds of proof that the bond lias been forfeited before calling onthe appellant to show cause why he should not be penalised. He relicson the case of tie Silva v. S. I. Police, Kandy (63 C. L. W. 109).
Section 411 (1) really deals with two types of bonds—
(а)bonds which arc taken for the performance or observance of certain
specified conditions, e.g., bonds to be of good behaviour, undersection 325 of the Code, or to keep the peace, under section 81,and
(б)bonds which arc purely for the appearance of an accused person
before Court on the trial dates.
In the former ease there must be proof to the satisfaction of the Courttliat there has been a breach of the conditions of the bond by the accusedand/or his surety.
When the bond is for appearance before Court, the absence of theaccused without excuse is in itself sufficient prima facie proof that therehas been a breach of the undertaking given in the bond. There arc nofurther grounds that a Magistrate need record. In my opinion, that isill that the section requires in the case of bonds for appearances in Courtbefore a surety is called upon to show cause.'
With great respect, I am unable to agree with the decision in de Silva
S. I. Police, Kandy, in so far as it applies to bonds purely for an accused’sippcarance in Court.
The appeal is dismissed.
I would like to make it clear, however, that before tlie default sentences carried out, a distress warrant should be issued in an effort to recoverhe amount of the penalty.
Appeal dismissed.