STATE Vs. JATI RAM

JUDGEMENT

(1.) THESE are five connected revisions in which a common question of law has been raised. C. D. Parekh. J. before whom they came up for hearing was of the opinion that the question of law arising for consideration in these revisions merited consideration by a larger Bench and as a result of the reference made by him. these cases are before us. We are disposing them of by a common judgment.

(2.) THE relevant facts giving rise to these revisions are that one M. A. Qidwai was being prosecuted in five different cases before the learned Additional District Magistrate (Judicial) Dehradun, for an offence punishable under Section 420/468, IPC On the 3rd September, 1968. the Public Prosecutor made an application before the learned Magistrate praying that enquiry proceedings for commitment of the accused be conducted ,in all the five cases. The learned Magistrate rejected the application and embarked on the trial of the accused. On the 14th September. 1968. charges were framed against M. A. Qidwai in all the five cases. On the subsequent dates a number of prosecution witnesses were examined in the five trials. On the 15th May. 1969. the learned Sessions Judge, Dehradun. released M. A. Qidwai on bail in all the five cases. The respondents before us stood sureties for the accused. They executed surety bonds on printed forms identical with Form No. XLII of Schedule V of the Code of Criminal Procedure. The learned trial Magistrate fixed 14th and 15th October. 1969. for recording the evidence of the Investigating Officer as also for the statement, of the accused and the depositions of the defence witnesses. On the 14th and 15th October. 1969. the accused did not appear before the trial Court. When the accused failed to appear before the learned Magistrate on the 15th October, 1969. he passed orders forfeiting the surety bonds executed by the respondents and issued non-bailable warrants for the arrest of the accused. On the same date the learned Magistrate passed orders directing issuance of notices to the. respondents to show cause by the 4th November. 1969 as to why they should not be required to pay the amounts for which they had stood sureties. On the 4th November. 1969. the sureties filed applications before the learned Magistrate praying for one month's time to enable them to produce the accused before the Court. The learned Magistrate passed an order fixing 1st December. 1969 for the production of the accused by the sureties in his Court. On that date the accused did not appear and on applications made by the respondents on a number of occasions extension of time was granted by the trial Court for the production of the accused. On the 5th February 1970 the learned Magistrate ultimately passed an order for realisation of the. amounts covered by the surety bonds as penalty. Against the order dated 5th February. 1970 the " sureties filed appeals before the learned Sessions Judge, Dehradun. The five appeals were allowed by the learned Sessions Judge. Dehradun. by a common judgment dated 31st July. 1971. The learned Sessions Judge took the view that by the bonds executed by them the sureties had merely undertaken to produce the accused during preliminary enquiry proceedings before the Magistrate and in the event of his being committed for trial to the Court of Session, before that Court. There however, had taken-no commitment proceedings or committal to the Court of Session. Since the only proceedings against the accused had been his trials before the learned Magistrate in accordance with the procedure prescribed for trial of warrant' cases, the bonds executed by the sureties could not be enforced if the accused failed to appear, since the contingencies contemplated by the bonds had not occurred. Aggrieved by the appellate orders of the learned Sessions Judge, the State has filed these five revisions before this Court.

(3.) LEARNED Counsel for the State. ' appearing in support of the revisions has contended that the surety bonds of the nature with which we are concerned-should be construed in the light of the-purpose and the object for which they1 had been executed and evidence of thea surrounding circumstances in which they" had come into existence could legitimately be taken into consideration for discovering the true intention of the parties concerned. It was urged that by the time the surety bonds in question-came into existence, the learned trial' Magistrate had already rejected an application made on behalf of the State for the conduct of enquiry proceedings; in the cases pending against the accused and had embarked on his trial. Consequently neither the sureties nor the State nor the Magistrate who accepted the surety bonds could have been under any misapprehension regarding the nature of proceedings pending against the accused. The respondents must consequently have known that they were required to enter into an agreement for the purpose of ensuring the attendance of the accused at the trials. The bonds consequently though executed in Form No. XLII must be construed as contracts expressing an undertaking-on the part of the executants to produce the accused on various dates fixed at the trials before the learned Magistrate. learned Counsel for the State placed reliance on the following observations in-the Supreme Court decision in State of Maharashtra v. Dadamiy. a Babumiya Sheikh. Each bond has to be construed on' its own terms. In some cases the bonds-require a strict construction. But in-construing a surety bond the purpose-and object of it must be kept in view. On the other hand, learned Counsel appearing for the respondents contended that since the surety bonds were in effect contracts contemplating penal liabilities they should be construed strictly and literally and since the respondents bad merely undertaken to produce the accused before the learned Additional District Magistrate (Judicial) during committal proceedings and in the event of his being committed for trial, before the learned Sessions Judge, the amount of the surety bonds could not be forfeited on the failure of the accused to -appear before the learned Magistrate at the trials. The facts of the Supreme Court decision in were entirely different from those of the cases before us. The decision cannot be relied upon as an authority for the proposition that even in cases where the terms of the surety bonds are without any ambiguity, extraneous evidence regarding the intention of the. parties thereto could be taken into account for construing it. "in fact such a view could not possibly have been taken in view of the express language of Section 92 of the Indian Evidence Act hereinafter referred to as the Act, It cannot be seriously disputed that the terms of surety bonds being Denal if their provisions are clear they must be strictly construed and unless the contingencies contemplated by them had occurred they cannot be enforced. Such a view was taken by the Supreme Court in State of Bihar v. M Homi.