O P ANAND Vs. STATE

JUDGEMENT

(1.) This criminal revision reached for hearing but no one appeared in this matter. I have gone through the files and the impugned orders and proceed to decide the matter on merits.

(2.) The facts of this case are that the petitioner admittedly stood surety for an accused-Khazan Singh. The surety bond executed by the petitioner contained the term that he would produce the accused on every hearing of the case before any court in which said case was to come up for hearing till final decision of the case and on his failure to produce the accused, if called upon to do so, he undertook to pay a sum of Rs. 5,000.00 to the Government. From accused-Khazan Singa a recovery of 350 pieces of Swiss made watches of the value of Rs. 10,500.00 was effected. A complaint under Section 135 of the Customs Act was instituted. It is admitted fact that in spite of numerous efforts being made by the court concerned and numerous opportunities being provided to the petitioner, the presence of the accused could not be procured and he was declared proclaimed offender and statements of the witnesses were recorded under Section 512 of the (Old) Code of Criminal Procedure. It appears that the surety bond was forfeited and initially an order was made by Shri P. P. Sharma, Additional Chief Metropolitan Magistrate, New Delhi, on February 25,1976, imposing a fine of Rs. 5,000.00 . An appeal was brought against that order and the appellate court of the Additional Sessions Judge vide order dated July 23, 1979, had set aside the said order and required the Magistrate to proceed in accordance with law after following the necessary procedure. The impugned order was made by Shri S. M. Aggarwal, Additional Chief Metropolitan Magistrate, on February 12, 1980, by which he imposed a penalty of Rs. 4,00'0.00 on the petitioner after he had followed the prucedure serving necessary notice on the petitioner and giving an opportunity of hearing to the petitioner. The appeal was filed against this order and the same came to be dismissed by the Additional Session Judge vide order dated August 5, 1980.

(3.) The first point raised in the criminal revision is that as no particular name of the court or the date for appearance has been mentioned in the bond in question, thus, the bond on the face of it is vague and hence, is unenforceable. This contention appears to be devoid of any merit. After all the terms of the bond have to be seen in order to understand whether the surety was made aware or not as to what he has undertaken when he executed the surety bond. The matter was at the stage of investigation when the surety bond was executed by the petitioner and obviously at that time no case was pending in any court, so the question of giving any indication in the surety bond regarding the name of the court or the date of appearance, could not have arisen. The matter stands concluded by a judgment of the Supreme Court in State of Maharashtra v. Dadamiya Babumiya Sheikh, AIR 1971 SC 1722.(l) While referring to the provisions of Section 514 of the (Old) Code of Criminal Procedure, the Supreme Court has clearly laid down that a surety bond is executed for the purpose of ensuring the presence of the accused concerned in the court in which he is standing his trial at the hearing of the case and thus, a surety bond is a contract and it is question as to how far its terms can be considered to have been varied by any unilateral act. Each bond has to be construed on its own terms, and in some cases the bond requires a strict construction but in construing a surety bond the purpose and object of executing it must be kept in view. In the said case, the surety had undertaken to produce the accused before the court on a particular date or on any other date as the court may direct. According to the term of the surety bond, the accused was to appear before the Chief Presidency Magistrate on April 16, 1964, but. before that date a circular was issued by the High Court by which the said matter was transferred to the Miscellaneous Court. The question which arose for decision was whether by issuance of such circular transferring the case to Miscellaneous Court absolved the surety from complying with the surety bond or not ? The surety bond was forfeited by the Chief presidency Magistrate on failure of the accused to appear before the aid court on the date fixed. So, there arose some ccnfusion as to the court in which the accused was to appear on that date and the High Court had set aside the order of forfeiture of the surety bond on that score and the Supreme. Court did not think it. a fit case to interfere under Article 136 of the Constitution. However, the Supreme Court made certain very pertinent observations, as to how the surety bond should be construed, in paragraph 7 and 8 of the judgment which I hereby deproduced :