MURLIDHAR Vs. STATE

JUDGEMENT

(1.) This is an application in revision by Murli Dhar and it arises under the following circumstances. Sri Nath and others were on trial Under Section 411, I.P.C. They were released on bail on Murli Dhar and Raja Ram executing personal bonds in the sum of Rs. 500 by which they stood surety for the accused and undertook to produce them before the trial court or before any court to which the case may be transferred. The accused failed to make the appearance in court on the date fixed. The result was that the sureties were called upon to show cause why their bonds be not forfeited. Ultimately the bonds were forfeited. Against the order of forfeiture Raja Ram made an appeal, and his appeal was allowed by the Sessions Judge on the 16th of July, 1954. Murli Dhar's appeal was, however, dismissed on the 9th of June, 1954. Murli Dhar has therefore come up in revision.

(2.) The first point which has been urged on behalf of the applicant is that the bond in question having been executed for appearance before the City Magistrate, the Judicial City Magistrate had no jurisdiction to forfeit for failure to appear. This point in my Opinion is not tenable; Where, as in the present case, the surety bound himself to produce the accused person before a court whenever required until the completion of his trial, his undertaking applies not only to that court but to all other courts of competent jurisdiction to which the case might go for trial. I might refer to four cases of this Court bearing upon the question. In Mahabir Pandey v. Emperor, 21 CrLJ 632 Knor, J., held that where a person binds himself to appear before a certain court, only that court is entitled to direct forfeiture of his bond. In Mustaqim Uddin v. Emperor, 24 AllLJ 327 decided by Doniels, J., and in State v. Ballabh Doss,1950 AWR 469 decided by P.L. Bhargava, J., and in Prem Chand v. State,1955 AllLJ 146 decided by James, J., it was laid down that the successor court is equally empowered to order forfeiture if the undertaking was that the surety will produce the accused person before a court whenever required until the completion of his trial. The terms of the security bond given in Form No. 42 of the Fifth Schedule to the Criminal Procedure are wide enough to include the successor of the court in which the case originally was. Any other view of the law, as was pointed out in the earlier decisions of this Court quoted above, would produce most inconvenient results, since if an accused were on bail when a case was transferred, it would in every case be necessary before transfrring the case to order his arrest or to require him to give fresh securities.

(3.) It has next been contended on behalf of the applicants that the bond in question having been executed on the 17th of March 1953, in favour of the King-Emperor, could not have been forfeited by the State. This contention in my opinion must be allowed to prevail. Under exacdy similar circumstances it was held in Asharfi Lal v. State Cr. Rev. No. 256 of 1951 decided by a Division Bench of this Court on the 10th of February, 1954, to which I was a party, that such a bond could not be forfeited by the State, and the reason was this. Before India became a Republic, the bonds were to be in favour of the Crown. The words in Form No. 42 were "Her Majesty the Queen." When India became a Republic, the Form was amended by the Amending Order of 1950 which was issued on the 26th of January, 1950, and instead of the words "Her Majesty the Queen" the word "Government" was substituted, with the result that the bond under Form No. 42 was hence forward to be executed in favour of the Government; The bond in the present case, as I have already said, was executed on the 17th of March, 1953, that is after the commencement of the Constitution and the coming into force of the Adaptation of Laws Order, 1950. After India became a Republic and Form No. 42 had been amended by the Adaptation of Laws Order, there was no point in executing a bond in favour of the "King-Emperor" because there was no "King Emperor" so far as India was concerned. Even if the error was an accidental error, it cannot be contended that in substance it should be taken that the bond was in favour of the Government. An error or commission in proceeding of the court which does not affect the merits of the case or prejudice the accused, can always be ignored Under Section 537 of the Code of Criminal Procedure. But this mistake, though technical, is a material mistake. The name of the obligee under the bond is wrongly mentioned. The bond is not in favour of the Government at all. The rights and liabilities of the King-Emperor devolved upon the Union or the State, as the case may be, under the Constitution which came into force on the 26th of January, 1950. But there can obviously be no devolution after that date. The bond cannot therefore be enforced against the applicant at the instance of the State.