MADHAVAN PILLAI Vs. STATE

JUDGEMENT

(1.) These revision petitions are directed against the order forfeiting the surety bonds executed by the petitioners and directing them to pay the penalty imposed by the order. These two petitioners had executed surety bonds for Rs. 350/- each for the release of the accused in P. E. No. 3 of 1119, on the file of the Division First Class Magistrate's Court at Kottayam. In the surety bonds, these petitioners had undertaken to produce the accused before Court on all the dates on which the case stood posted. On 6.5.1119, to which date the case stood posted, the accused did not appear in Court. Some time prior to that date, he had joined the Indian Army. On 6.5.1119 itself, one of the sureties filed Ext. B petition before the Court, expressing his inability to produce the accused, who had joined the Military, and praying that the surety bond may be discharged. On the basis of that petition, the Magistrate started extradition proceedings against the accused and he was brought to Court on 28.2.1120. Thereafter he was retained in custody until the case against him terminated. In the appeal judgment in the case, there was a direction that the Magistrate should exercise his jurisdiction in the matter of enforcing the surety bonds. Accordingly the Magistrate took up Miscellaneous Case No. 3 of 1122 against the accused and the two sureties for enforcing the bonds executed by them. The two sureties are counter petitioners 2 and 3 in M.C. No. of 3 of 1122. The Magistrate held that these two sureties had forfeited their bonds and accordingly directed each of them to pay the penalty of Rs. 100. The District Magistrate, to whom the matter was taken in appeal, confirmed the order of the First Class Magistrate, but reduced the amount of the penalty from Rs. 100/- to Rs. 50/-. The sureties have therefore come up in revision. Crl. R. P. No. 361/1123 is by the second counter petitioner and Crl. R. P. No. 68/1124 is by the third counter petitioner in M.C. No. 3 of 1122.

(2.) The main point urged on behalf of the revision petitioners is that in view of Ext. B petition put in by one of the sureties on 6.5.1119, their bonds could not be forfeited and penalty levied from them. Under S.413 of the Travancore Criminal Procedure Code (corresponding to S.502 of the Indian Code) every surety has the right to apply to the Magistrate at any time, for an order discharging his bond. Cl.2 of that section lays down that on receiving such an application, the Magistrate shall cause the person released on bail to be arrested and brought before him. Cl.3 lays down that when such person appears or is brought before Court, the Magistrate shall direct the surety bonds to be discharged and shall call upon the accused person to produce other sufficient sureties and, in default, commit him to custody. Consistent with these provisions, the Magistrate, before whom Ext. B petition was put in apparently under S.413, started extradition proceedings against the accused and had him brought before Court on 28.2.1120. Thereafter the accused was detained in the custody of the Court. The action thus taken by the Magistrate on Ext. B petition, has in substance and effect resulted in discharging the bonds which were executed by the two sureties. In view of the provisions contained in S.413 of the Code the Magistrate is bound to take the necessary steps for the arrest of the accused when once the surety has applied for an order of discharge, and before taking such steps, it will not be proper to seek to enforce the bond against the sureties. The rulings in Gurumukh v. Emperor (27 Criminal Law Journal 848) and The Maung v. Emperor (AIR 1937 Rang. 244) are in support of this position. When the accused surrenders to the Court or is brought before it as per the action taken under S.413, the sureties are ipso facto discharged and there will be no further question of forfeiture of their bonds. In the present instance, the accused who was extradited and brought before Court, on 28.2.1120, was thereafter detained in the custody of the Court, and hence it cannot be said that during such period there was any default on the part of the sureties in securing the attendance of the accused. Prior to the date of Ext. B petition also there was no default on the part of the sureties. On 13.4.1119, the Court is seen to have allowed the accused's application to appear through his pleader. Thus at no stage of the proceedings in the case the sureties can be said to have become defaulters in the matter of securing the attendance of the accused. It follows therefore that there has been no forfeiture of the bonds executed by the sureties in this case and that no penalty can be imposed on them.