Patna High Court
Keshav Narain Choudhary And Ors. vs The State on 24 July, 1953
Equivalent citations: 1953(1)BLJR558
JUDGMENT Jamuar, J.
1. This application has been referred to a Division Bench, as its decision involves questions of some importance.
2. The facts are simple. On the 6th June, 1952, the Sub-Inspector of Gopalpur Police Station reported for action under Section 107 of the Code of Criminal Procedure against some persons of the first party as also against petitioners 1 to 13 as the second party. On the next day, the Subdivisional Magistrate of Bhagalpur drew up proceedings accordingly. We are concerned in this application with petitioners 1 to 13 who were members of the second party. Bailable warrants of arrest were issued for the appearance of these petitioners before him on the 26th June, 1952. These warrants are said to have been served upon these petitioners, and were returned on the 17th June, 1952, At this stage, it should be stated that petitioner No. 14, Janardan Prasad Choudhary, executed a bond standing as surety for the production of four out of petitioners 1 to 13 in the Court of the Magistrate an the 26th June, 1952, and he stated in this bond that "If I fail to produce them I shall pay to the Government rupees one thousand for each accused as fine". Upon this bond, those four petitioners also put their signatures, presumably, by way of attestation.
3. Petitioners 1 to 13, however, did not appear before the Magistrate on the 26th June, 1952, as required. The Sub-divisional Magistrate, accordingly, took proceedings under Section 514, Criminal Procedure Code, for the forfeiture of the bonds. All the fourteen petitioners showed cause before the Magistrate, which was not accepted as satisfactory. The bond executed by petitioner No. 14, Janardan Prasad Choudhary, the bailor for four of the other petitioners, was ordered to be forfeited, and he was ordered to pay a penalty of Rs. 200/- in respect of each of the four persons for whom he had stood surety. The other thirteen petitioners, against whom bailable warrants of arrest had been issued, were also ordered to pay a penalty of Rs. 200/- each for having failed to appear in Court on the date fixed.
4. The points raised in support of this application were twofold: it was argued, in the first place, that the thirteen petitioners, against whom bailable warrants of arrest had been issued, had executed no bond at all which could be forfeited, nor had they given any undertaking to appear in the. Court of the Magistrate on the 26th June, 1952, and that, therefore, in these circumstances, the order of the learned Magistrate to the effect that they should pay a penalty of Rs. 200/- each for their non-appearance in Court on the date fixed is invalid and illegal; and, in the second place, that, as there was no valid bond or undertaking given by those thirteen petitioners, there could have been no valid bond taken from the surety of any of them for his production in Court. The second question is referable in the present case to petitioner No. 14, the bailor, only.
5. So far as the first question is concerned, it affects the order passed by the Magistrate against petitioners 1 to 13. Under Sub-section (1) of Section 514 of the Code of Criminal Procedure, it is provided that, whenever it is proved to the satisfaction of the court by which a bond under this Code has been taken, or, when the bond is for appearance before a Court, to the satisfaction of sucn Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid, and by Sub-section (5) the Court has been given discretion to remit any portion of the penalty mentioned in the bond & enforce payment in part only. From the record of this case, it nowhere appears that any bond was executed by any of the first thirteen petitioners for their appearance in Court. What has happened is that the sureties executed bonds, and the persons for whom they stood surety put their signatures upon the bonds. In this state of affairs, all that can be said is that the sureties undertook to produce the persons for whom they stood sureties before the Magistrate on a particular date, but none of the persons for whom they stood surety had himself given any bond for his appearance on that date.
Where a bail bond is only taken from the surety, the person for whom that bail bond is executed cannot be directed to pay the penalty or any portion thereof, as he cannot be said to have been guilty of any disobedience. It was sought to be argued for the State that such a person who puts his signature upon the bond would show that he was aware that he was to appear before a particular Magistrate at a certain place and on a certain date, and that, for his failure to do so he can be penalised. If this argument were correct, the question arises--penalised to what extent? In the particular case before us, the surety had stated in his bold that he would pay a sum of Rs. 1,000/-, if he failed to produce a particular accused, as penalty. Can the argument be stretched to the extent that it would mean that the accused who signed that bond executed by the surety also undertook to pay a sum of Rs. 1,000/- as penalty, if he did not appear as directed? I do not think that such an argument can be accepted.
Failure by an accused, who is legally bound to attend in person or by aa agent, so to attend will render him liable to punishment under the provisions of Section 174, Indian Penal Code. But no question of forfeiture of any bond can arise, as no bond has been executed by the accused. The fact that an accused has attested a bond executed by his surety will only amount to an information to the accused about the execution of such a bond I am, therefore, of the opinion that since no bond was taken from any of the first thirteen petitioners, for their appearance in Court on the 26th June, 1952, the provisions of Section 514, Criminal Procedure Code, cannot apply. The order passed against them requiring them to pay a penalty of Rs. 200/- each must, accordingly, be set aside.
6. The next question, as I have stated already, is confined to the case of petitioner No. 14 who stood surety for four of the other petitioners, and it was contended that, as those four petitioners had themselves not executed any bond for their appearance in Court, the bond executed by this surety cannot be effective or valid, as the two bonds, namely, the one executed by the person released on bail and the other executed by the surety, are interdependent, and cannot be dealt with separately. This argument was advanced upon the wording of Sub-section (1) of Section 499 of the Code of Criminal Procedure which is in the following terms :
"Before any person is released on bail or released on his own bond, "a bond" for such sum of money as the police-officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police-officer or Court, as the case may be."
It seems that different views have been taken in this connection by some of the High Courts. The decision of a single Judge of this Court in the case of -- 'Baidyanath Misra v. Emperor', AIR 1947 Pat 58 (A), was placed before us in support of the view advanced on behalf of this petitioner. It is necessary to examine the view expressed in this Patna case first. The bond which is usually taken in such cases is in Form. No. III of Schedule V of the Criminal Procedure Code. The first part of the bond is to be executed by the accused, and the second part by the surety. In the Patna case, the first part of the bond, which has to be given by the accused himself, was cancelled by scoring.
through, and the second part, which is meant for the surety, was signed by the surety. It was contended in that case on behalf of the surety that there was no such bond as is contemplated by the Code of Criminal Procedure, and, therefore, there was no power in the Code to forfeit such a bond, and the contention was accepted. It was held that the provisions of Section 499 as to the nature and contents of a bond are imperative, and it was incumbent under the section to get a bond executed by the person released on bail, and, in the absence of such a bond, there can be no valid bond by the surety alone, as a bond by the surety alone is not contemplated by the Code, and there was no power in the Code to forfeit such a bond.
This view was based upon an earlier case of the Allahabad High Court, namely, -- 'Brahma Nand v. Emperor', AIR 1939 All 682 (B). It was upon the basis of this decision of the Allahabad High Court that the Patna case was decided. On behalf of the State, it was argued in the present case that the decision of the learned single Judge of this Court in the case of -- 'AIR 1947 Pat 58 (A)', is not correct, and should be overruled, the proper view to take being that the bond executed by the person released and the bond executed by the surety, though the two may be on the same form, are separable, and not interdependent. The decision of the Allahabad High Court in -- 'AIR 1939 All 682 (B)', is also that of a single Judge. This decision does not, however, appear to have been followed by the same High Court in subsequent years. In the case of -- 'Nisar Ahmad v. Emperor', AIR 1945 All 389 (C), which is also a decision of a single Judge, the learned Judge expressed the opinion that he did not feel inclined to agree with the view expressed in the earlier Allahabad case, and he stated that, if he were not in favour of the applicant on other points, he may have found it necessary to refer the case to a larger Bench, as "with great respect and with a certain amount of diffidence, I do not feel inclined to agree with the view expressed in that case (namely, the case of -- 'AIR 1939 All 682 (B)'", and observed :
"The section clearly contemplates two bonds, one by the accused and another by the surety or sureties. The form prescribed by the Criminal Procedure Code in Schedule 5 Form No. 42, also clearly shows that there have to be two bonds, one executed by the accused and the other by the surety, but to my mind, in a case of this nature the obligation undertaken by the surety is entirely independent. ........The Court may require the accused and the sureties to give bonds for different sums. When, therefore, an accused person has been released on bail merely on the undertaking of the surety and bond is executed by the surety, without the accused having been required to execute a personal bond, it may be that the officer or the Court has acted in an irregular manner and the accused should not have been released on bail, but I do not see how that fact can in any way affect the liability of the surety who had undertaken to produce the accused before the Court on the date or dates mentioned in the bond."
In a still later case of the same High Court, namely, -- 'Abdul Aziz v. Emperor', AIR 1946 All 116 (D), the decision given in the case of -- 'AIR 1939 All 682 (B)', was not followed, and the decision given in the case of --'AIR 1945 All 389 (C)', was accepted as being the correct view. The view taken in this later case was that the fact that the person released on bail himself did not sign the bond for his attendance when called upon does not make the bond executed by the surety an invalid one.
7. Two cases of the Lahore High Court were also brought to our notice : -- 'Wadhawa Singh v. Emperor', AIR 1928 Lah 318 (E) and -- 'Indar v. Emperor', AIR 1940 Lah 339 (P). In the former case it was observed that the terms of a bail bond should be in accordance with Form 42 of the Schedule which indicates what the contents of a bond with sureties should be, and, in order to be enforceable, bond must be in accordance with the form. Where, therefore, the bond is not in accordance with the form, the person executing the same incurs no legal liability by executing it. It was further observed in the case as follows :
"Further it is obvious that there can be no surety without a principal. In the present case no undertaking having been given by Teja Singh to appear when called upon to do so, it is not possible for any person to declare himself surety for his appearance."
With great respect, I do not agree with this observation for, under the Criminal Procedure Code, there is no question of a principal and a surety. Under this Code, there can be a surety without a principal, in the sense that the surety may undertake to produce a person released on bail, and yet the person so released may not have executed any bond for his own appearance. The view expressed in this case was not approved in the later Lahore case, namely, -- 'AIR 1940 Lah 339 (F)', in which the learned Judge said : "I do not agree, with the reasons by which the learned Judge supported his order."
8. The only other case to which we were referred by learned Counsel on behalf of the petitioners was the case of -- 'Chamra Meher v. State of Orissa', AIR 1951 Orissa 179 (G), in which it was also held that a bond executed only by the sureties and not by the accused also is not a bond as contemplated by Section 499(1), Criminal Procedure Code, and, therefore, the summary procedure for forfeiture of the bond provided in Section 514 will not be applicable to such a case. This was a Division Bench case decided by Ray, C. J. and Narasimham, J. and it confirmed the view expressed in an earlier case -- 'Govinda Chandra v. State', AIR 1951 Orissa 18 (H), decided by Ray, C. J. sitting singly. In this latter Orissa case the bond executed by the surety was a peculiar one. The wording of the bond is really applicable to the accused and not to the surety, for it proceeded as follows:
"We the accused have been called upon to furnish securities with one surety of Rs. 200 each .... I, therefore, agree that from today till the disposal of this case I shall appear in Court on 30-12-1949 and on all other dates to which the case is adjourned . and in case I fail to appear I shall have to pay Rs. 1200. If I fail to pay, the State shall realise it by attaching and selling my properties. I execute the 'Muchalika' to this effect."
But it was signed not by the accused but by the surety. It was not signed by any of the accused persons, though the document contained a list of the names of six accused persons. None of the accused persons had, therefore, bound himself to appear in Court on condition of forfeiting any sum of money. The learned Chief Justice observed as follows :
"I cannot conceive that, without an accused himself executing a bond, any surety could be thought of. The very conception behind the word 'surety' and the liability implied in that status as recognised by law is to reimburse the loss sustained by the principal on account of failure of performance on the part of the obligor. The principal (i.e., the State in this case) has double remedy -- one against the principal obligor and the other against his surety. Not taking a bond from the accused person to appear on the dates fixed amounts to leaving him to act at his own option. If the accused is not bound to appear, there is no meaning requiring the surety to make him appear. It is well established in law that if the principal by his laches or otherwise releases the debtor from the liability sought to be assumed by the surety, his remedy against the surety is frustrated."
With, very great respect, I think this reasoning confuses the relationship between a principal and a surety in civil taw with that between an accused person and his surety or bailor in criminal law. If a bond is not taken from an accused person himself for his appearance in Court, I see no reason why a bond taken from a surety for his production in Court should be held to be invalid. The learned Chief Justice also referred to Section 499 of the Criminal Procedure Code, and observed rightly, if I may say so with respect, that the section contemplates two cases : one when the accused is to be released on his own bond and the other when the accused is released on bail. The execution of a bond by the accused is imperative, and in the case of release of the accused on bail, a bond by sureties has to be executed in addition. But if a bond is not taken from the accused him-self but only from a surety, and the accused is released on bail, this would, in my opinion, be an irregularity, but it would not make the bond executed by the surety invalid. The learned Chief Justice accepted the view taken in the case of-- 'AIR 1928 Lab 318 (E)', but dissented from the view taken in the subsequent case of the same High Court, namely, 'the case of -- 'AIR 1940 Lah 339 (F)', in which the opinion expressed in the former Lahore case was not accepted. The learned Chief Justice also dissented from the view expressed in the two Allahabad cases referred to above, namely, -- 'AIR 1945 All 389 (C)' and -- 'AIR 1946 All 116 (D)'. With regard to the two Allahabad cases, his Lordship the Chief Justice stated as follows:
"In the Allahabad cases, their Lordships have failed to consider that the accused, remaining at large without executing a bond, cannot be said to have been released on bail. To hold otherwise would amount to setting the imperative provisions of Section 499 at naught. If the accused has not been released on bail, and has not undertaken to appear on pain of forfeiture of a bond for a certain amount, the consideration for the surety bond fails and the surety's liability is enlarged or subjected to greater risk than he shall be considered to have undertaken under the provisions of Section 499 without his consent. The surety's bond, therefore, becomes unenforceable."
I do not find myself able to accept this view of the law. I have already stated that in such a circumstance all that can be said is that the release of the accused on bail was irregular, and not warranted, but that the position of the surety as expressed in the bond executed by him remains unaltered. Then the learned Chief Justice expressed the view that on principle he was bound, sitting in the Orissa High Court by the view prevailing in the Patna High Court, and he referred to the view expressed by the learned single Judge in the case of -- 'AIR 1947 Pat 58 (A)', where it was held that a bond by the surety alone was not contemplated by the Code and there was no power in the Code to forfeit such a bond. But, as I have already stated, this Patna case was based upon an earlier view of the Allahabad High Court expressed in the case of -- 'AIR 1939 All 682 (B)', which was dissented from in the later Allahabad cases already noticed.
9. Furthermore, I have already shown that the terms of the bond are terms which are not applicable to a bond executed by a surety taut applicable to one executed by the accused. The surety, in the bond executed by him, nowhere stated that he had undertaken to produce the accused in Court on any date. As pointed out by the learned Chief Justice, the bailor was entitled to demand his pound of flesh and to say that, in accordance with the terms of the document, he had appeared on all the dates in Court; the bailor not having failed to make his appearance, though the accused had, the bailor had fulfilled the terms and the conditions mentioned in the bond, and he could not be held liable. He nowhere agreed to be liable to pay any sum of money for the non-appearance of the accused. To forfeit such a bond of a surety for the non-appearance of an accused would, therefore, be scarcely justified.
10. On a review of the decisions, therefore, I do not feel disposed to follow the opinion expressed in the case of -- 'AIR 1947 Pat 58 (A)', which was based upon a decision of the Allahabad High Court, which itself was not followed in later cases of the same High Court. I am of the opinion that although the four petitioners, for whom petitioner No. 14, Janardan Prasad Choudhary, stood surety, were improperly released, no bond having been taken from them personally for their appearance in Court, the bond executed by this petitioner for the production of those four men in the Court of the Subdivisional Magistrate Bhagalpur on the 26th June, 1952, was valid, and that the learned Subdivisional Magistrate was entitled to forfeit it in the circumstances, of the case. I, therefore, find no ground for interference with this part of the order of the learned Subdivisional Magistrate.
11. In the result, the application of petitioners 1 to 13 is allowed, and the application of petitioner No. 14 is dismissed. The penalty, if paid by petitioners 1 to 13, will be refunded.
Sahai, J.
12. I agree.