Rex v Patel and Another (Cr. Apps. 25 & 26/1932.) [1932] EACA 18 (1 January 1932)

# APPELLATE CRIMINAL.

Before THOMAS, J. and GAMBLE, Acting J.

### REX

### (Respondent) (Original Prosecutor)

$\overline{1}$

#### DAHYABHAI SHANKERBHAI PATEL 1.

#### $2.$ CHUNIBHAI HATHIBHAI PATEL

(Appellants) (Original Accused).

## Cr. Apps. 25 & 26/1932.

# The Criminal Procedure Code, section 122—Bail bond—Duties of sureties—Section 129—Forfeiture of recognizance.

$Held$ (15-10-32): That the effect of the bail bond was to remove the accused person from the custody of the Court and place him in the custody of the sureties. Where the accused person could not be notified owing to his having departed without leaving an address and when the sureties did not, on notice, produce the accused<br>person, then the sureties had not discharged their duty as to<br>their custody of the accused person, and their recognizances were rightly endorsed and sums for which they had rendered themselves liable were rightly forfeited.

Allan for Appellants.

Doran, Crown Counsel, for Attorney General.

A bail.bond provided that an accused person should attend on a specific date and thereafter on such date as he should be required to attend. The accused person attended at the Court House on the specified date, when no Court was held owing to the absence of the Magistrate, and thereafter departed leaving no. address so that he could not be notified as to the further date on which he would be required to attend. The sureties, after having been notified by the Magistrate, failed to produce the accused person, and the Magistrate ordered their recognizances to be endorsed and declared that part of the sum in each case should be forfeited.

JUDGMENT.—These two appeals have been taken together with the consent of counsel.

The appellants entered into a bond as sureties for one, R. I. Patel. Their undertaking was as follows:-

" "We jointly and severally declare ourselves and each of us sureties for the above said R. I. Patel that he shall attend at Nakuru in the Court of Resident Magistrate on the 13th day of May, 1932 next (or on such day as he may hereafter be required to attend) further to answer to the charge pending against him, and, in case of his making default therein, we hereby bind ourselves to forfeit to His Majesty the King the sum of Sh. 500 each (severally). Dated 10th May, 1932."

The said R. I. Patel seems to have attended at Nakuru on the 13th of May, but there was no Court sitting on that day. On the 14th of May the accused being absent the Magistrate ordered hearing notices to be issued for the 3rd of August. On the 3rd of August the accused was absent, and an Order was made notifying the sureties and calling upon them to produce the accused or forfeit the amount of their bond on the 24th of August.

On the 24th of August a letter from the Immigration Officer, Mombasa, was shown stating that the accused left for India on or about the 6th of July, 1932.

After hearing arguments on behalf of the sureties the Magistrate at Nakuru ordered the recognizances to be endorsed and he declared that half the sum in each case, i.e., Sh. 250 each should be forfeited.

From that Order the present appeals have been made.

The effect of bail is merely to change the nature of the custody. Instead of the accused remaining in the custody of the police and being detained in prison, he is handed over to the custody of the sureties.

The duty therefore falls upon the sureties to make the necessary arrangements for taking charge of the accused and seeing that he complies with the conditions of the bail bond. Their liability in this respect is, of course, limited to the terms by which they themselves have agreed to be bound.

If they at any time are not satisfied as to their ability to comply with those conditions they can surrender the accused before the Magistrate and ask to be released. It will be then for the accused to provide other sureties subject to the approval of the Magistrate.

In this case the sureties, who were at Mombasa, did nothing. The accused appeared at Nakuru on the 13th of May, and the sureties contend that that was a sufficient compliance with the terms of their bond.

With reference to the words "or on such day as he may hereafter be required to attend," the sureties contend that the accused was not notified as to his appearance on any subsequent date and therefore they are exempt.

It might be contended with some force that inasmuch as the Magistrate did not hold a Court on the 13th of May the condition with regard to that date was impossible of performance

and therefore the accused was excused. The accused must, however, have known that in that the matter had not been dealt with on that day, he would be required to attend on some subsequent date. He seems to have gone away. The Magistrate's note is: "has gone to Ol Kalau."

Hearing notices were issued for the 3rd of August. The accused was not served with the hearing notice. The notice is endorsed: "Notice returned to you unserved. R. I. Patel left Ol Kalou on the 2nd July, 1932. He did not tell anyone where he was going, but purchased a ticket for Nairobi. He has notbeen seen or heard of since."

From that it is clear that the Magistrate complied with any requirement imposed upon him to notify the accused; but the accused rendered notification impossible by leaving no address. He was enabled to do this by the neglect of his sureties in not maintaining a proper custody or surveillance over him. The sureties, therefore, cannot, in our opinion, take advantage of the fact that no notice was served, to escape liability under the terms of their bond.

Those terms as previously stated were "that the accused should attend on such day as he may hereafter be required to attend." In that the accused did not attend, the action of the Magistrate in endorsing the recognizances was correct.

We can find no authority for reducing the amount of the recognizances; but inasmuch as this point was not argued on the appeal we do not propose to make any variation of the Magistrate's Order in this respect.

The appeals are dismissed.

We would recommend that the exact wording of section 122 of the Criminal Procedure Code as to the attendance of the accused should be employed in Bail Bonds.