R v John Ritayi and Sakalunyinga Kasoka (Criminal Review Case 247 of 1939) [1939] ZMHCNR 12 (31 December 1939)

[Vol. II R. v. JOHN RITAYI AND SAKALUNYINGA KASOKA. Criminal R eview Case No. 217 of 1930. Forfeiture o f deposit—discretion of court—if warrant issued forfeiture should he postponed. The forfeiture o f a deposit on non-appearance o f accused should be postponed if a warrant is being issued to bring the accused before If, however, no warrant is being issued it is proper that the court. the deposit should be forfeited at once. T h om son , A . J .: The two accused in this case were apparently arrested on 3rd July and the same day each made a deposit o f 10s. with the police at Chingola, presumably in accordance with section 119 o f the Criminal Procedure Code, which each acknowledged should become for- feited to the Crown if he failed to appear before the Court o f the Resident Magistrate at Chingola on 5th July at 9 o’clock in the forenoon. On the 5th July both accused failed to appear at the time and place at which they had been required to appear and the Magistrate, quite properly, ordered the money deposited to be forfeited, or in his own phrase the bail to be estreated. He then issued warrants for the arrest o f the accused. The warrants were executed and the accused were brought before the Court on 12th July when each was duly tried, con­ victed and sentenced. Now, I do not propose to interfere with these proceedings in any way, but I would wish to make it clear that, under section 124 o f the Criminal Procedure Code, forfeiture o f recognizances on non-appearance is not obligatory but is within the discretion o f the Court and there are, o f course, such circumstances as sickness and so forth which might well be an excuse for non-appearance in an individual case and which would render forfeiture o f recognizances harsh and unreasonable. When a defendant does not appear and no steps are contemplated to enforce his appearance it is only right and proper that his recognizance (or deposit as the case may be) should be forfeited forthwith, but in a case where the defendant subsequently appears either on a warrant or otherwise he should be afforded an opportunity o f showing cause, if he can, why his recognizance should not be forfeited and as a matter o f practice and to avoid difficulties forfeiture should not be finally ordered until it is reasonably probable that the defendant will not appear. In this particular case the Magistrate issued his warrants on 5th July, having earlier in the same day forfeited the deposits o f the two accused. It would have been better had he deferred dealing with the deposits and then when the accused appeared before him on 12th July dealt with the question o f forfeiture (or in other words with the question o f whether or not the accused had or had not a good excuse for their non-attendance on 5th July) before proceeding to the trial o f the Information.