BALLABH DASS Vs. REX

JUDGEMENT

(1.) Khemchand was being prosecuted under Section 457, Penal Code. While the case against him was pending in the Court of the City Magistrate of Mathura the applicant Ballabh Das and one Ram Prasad executed a joint surety bond, under which they undertook to produce Khemchand whenever they were called upon to do so by Court during the pendency of the case, and, in the event of their failure to do so, to pay a penalty of Rs. 500 each. The case was subsequently transferred to the Judicial Magistrate of Mathura, who fixed it for hearing on 26th March 1949. The Judicial Magistrate called upon the applicant by means of a notice to produce Khemchand on the date fixed; and he failed to comply with the order. The Judicial Magistrate thereupon treated the surety bond as having been forfeited and, under Section 614, Criminal P. C., ordered the applicant to pay the penalty of Rs. 500, in terms of the surety bond. The applicant preferred an appeal against the order of the Judicial Magistrate to the Sessions Judge of Mathura, who upheld the order but reduced the amount of penalty to Rs. 250. Now, the applicant has come up to this Court in revision.

(2.) Learned counsel for the applicant has contended that the applicant had only undertaken to produce Khemchand in the Court of the City Magistrate, and, as such he was not liable to pay any penalty for his failure to produce Khemchand before the Judicial Magistrate, to whom the case was subsequently transferred; and that, in any case, the Judicial Magistrate was not competent to take any action against him under Section 514, Criminal P. C. Under the surety bond, however, he had undertaken to produce him whenever called upon to do so by Court during-the pendency of the case. There is nothing in the bond to show that he had undertaken to produce him only in that Court. The notice issued by the Judicial Magistrate was served upon him personally; so he knew full well that the case had been transferred to, and was pending in the Court of the Judicial Magistrate. Consequently, in terms of the surety bond the applicant was bound to produce Khemchand in the latter' Court as well. That being so, there was forfeiture of the bond and the applicant became liable to pay the penalty.

(3.) In this connection learned counsel for the applicant further contended that there was a contract between the applicant and the Court of the City Magistrate and not with the Judicial Magistrate of Mathura; consequently, there was no contractual liability upon the applicant to pay any penalty for his failure to produce Khemchand in compliance with the order of the Judicial Magistrate in his Court. I see no force in this contention. The applicant had executed a surety bond undertaking to produce the accused, who was on trial, in Court whenever called upon to do so during the pendency of the case, which had been started by the State against him, and in the event of his failure to do so to pay the specified amount to the State. as such the contract really was between the State (not the Court) and the applicant.