GAJODHAR Vs. STATE OF U P

JUDGEMENT

(1.) This revision under Sec. 397/401 Cr. P. C. is against an order, dated 27. 2. 1981, by which the learned Sess ions Judge of Barabanki dismissed the appli cants' Criminal Appeal No. 78 of 1980, against the order dated 24. 11. 1980 of Judicial Magi strate Vth, Barabanki, rejecting a petition of the applicants to drop the proceedings of recovery of the amounts of surety bonds executed by them in respect of one Rameshwar who was accused for having committed an offence punishable under Section 25 of the Arms Act. It appears that Rameshwar was arrested in connection with two offences: (1) under Sections 379/411, I. P. C. and (2) under Section 25 of the Arms Act. He was granted bail in both the cases. He appeared before the trial Magistrate in the case under Sections 379/411, I. P. C. , but was acquitted. He did not appear in the case under Section 25 of the Arms Act and, therefore, proceedings for recovery of the surety amount of Rs. 1,000/- each were taken against the appli cants, Gajodher and Danku. While the procee dings were still, pending Rameshwar appeared before the lower court on 17. 11. 1980, pleaded guilty on. 2. 12. 1980, was convicted accordingly, and was awarded sentence of imprisonment for the period already undergone. However, the proceedings for recovery of the amounts of surety bonds continued against the applicants one of whom, namely Gajodhar, by application dated 8. 9. 1978, had sought an opportunity to produce Ramesh war in court. On 12. 5. 1979 the Magistrate passed the order for recovery of the amounts, and when their property was attached, the applicants applied to the Magistrate for quashing the recovery proceedings on the ground, inter alia, that they had not stood sureties for Rameshwar for the offence under Section 25 of the Arms Act. The Magistrate mentioned in his order that the Surety bonds for the offence under Section 25 of the Arms Act, were not on record, but Gajodhar had admitted in his application dated 8. 9. 1978 that he was surety for the accused. Consequently, the Magistrate dismissed the application by order dated 24. 11. 1980. In the appeal, against the said order, it was again urged that the applicants were not sureties for the accused for the offence under Section 25 of the Arms Act. The learned Sessions Judge again relied upon the said application dated 8. 9. 1978 of Gajodhar and further referred to an application dated 31. 10. 1980 of both the applicants as the so-called admission of the applicants of their being sureties for Rameshwar. He also observed that the initial order for recovery of the amounts of surely bonds was passed on 12. 5. 1979 which had become final by lapse of time and, therefore, the appeal could not succeed. In this revision, the learned counsel for the applicants points out that the admission of Gajodhar, in the application dated 8. 9. 1978, could not extend to the case of Danku, and that the so-called admission of both the applicants in the application, dated 31. 10. 1980 related to the case under Sections 379/411, Indian Penal Code and not to the case under Section 25 Arms Act. The contention is corre ct. The so- called applications are before me. The application, dated 31. 10. 1980, not only describes the title of the case to be under Sections 379/411, Indian Penal Code but even in the text it is pointed out that accused Rameshwar had been acquitted. Obviously, that acquittal referred to the case under Sections 379/411, Indian Penal Code and therefore, the applications could not be utilized as admission in respect of the case under Section 25 Arms Act. So far as the admission of Gajodhar in the application, dated 8. 9. 1979, is concerned, there can be no getting out of it, but for the fact that it is not proved that he or any of the two applicants had executed surety bonds in respect of the case for the offence under Section 25 Arms Act. Moreover, both the cases have ended. The accused did not put in appearance and having regard to the features of the case, it is no longer appropriate to enforce the recovery of the amounts from any of the applicants. The record, however, reveals a situation which needs attention on the administrative side. The proforma meant for the accused to execute a personal bond and for the sureties to execute surety bonds are printed on the two sides of the same paper. It is described as H. CJ. No. 17, Part VIII and refers to Sec tions 496 and 499, Criminal Procedure Code (of 1898 ). The first page contains the parti culars of the case and the offence, and the undertaking of the accused in the form of a personal bond for appearance. The reverse side contains text for the surety to execute in continuation of the terms of the bond executed by the accused. This part of the form does not contain the particulars of the case of the offence etc. The two sides of the proforma have to be read together. What was done in this case, and, perhaps is the unfortunate practice in the subordinate courts, is that the first page of the proforma was got executed on 14. 2. 1977 by the accused, but the reverse page was left blank. It was expected that the sureties should have exe cuted the reverse page as their part of the bond. The result is that the document does not indicate that the applicants stood sureties for the transaction for which accused Ram eshwar had executed the bond dated 14. 2. 1977. The record, however, contains two similar proformas executed separately by Gajodhar as if he was surety for Rameshwar in two matters, but none of these proformas incoporate the particulars of the case for which he stood surety. Annexed to these two pro-formae is the affidavit of Gajodhar wherein he stated that he stood surety for Rameshwar, but the title of this affidavit describes the case to be under Section 379/411 Indian Penal Code the case under Section 25 Arms Act is not mentioned therein. There is substance therefore, in the contention of the learned counsel for the applicants that these bonds executed by Gajodhar as surety, could not be considered to be for the offence under Section 25 Arms Act. It, at best, could be treated to be for the case under Sections 379/411 of Indian Penal Code. Strictly speaking, even this is a concession because the particulars of the case and the offence must appear on the bond itself, it is not enough that a mere affidavit gives the particulars, specially when the affidavit is not described to be a part of the bond. The above situation, regarding applicant Gajodhar, is identically repeated in the case of applicant Danku. There are two forms signed by him as a surety without corresponding bond of the accused and without the particulars of any case, whatsoever, only accompanied by his affidavit purporting to be in the case for the offence under Sections 379/411 Indian Penal Code. One can only suspect that the two surety bonds, executed by each of the two applicants, could have con cerned the two cases under Sees. 379/411 Indian Penal Code and Section 23 Arms Act, but suspicion is not proof, and, in any case, where a liability is required to flow out of a document, it must be shown to be expressly flowing from the document. Indeed, the trial Magistrate has recorded a finding that the surety bonds, for the offence under Section 25 Arms Act, were not on record at all. It seems to be in the fitness of things that the practice prevailing in the subordinate criminal court in regard to the proformae used for the bonds, executed by the accused and the sureities, may be examined and necessary administrative instructions may be issued to rectify lapses as indicated above. The petition is allowed. The orders of the courts below are set aside and the procee dings for recovery of the amounts of the surety bonds, from the applicants, are quashed. The property, if any, attached from the applicants, shall be restored to them forthwith. A copy of this order shall be sent to Hon'ble the Chief Justice for such action as may be considered appropriate. .