MAHADEO AMRUT GAJBHIYE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE question which arises in this revision application is whether a bond executed by sureties alone can be forfeited even though the accused who has been released on bail has himself not executed a bond as contemplated by Section 499 (1) of the Code of Criminal Procedure. The question arises on the following facts.

(2.) PROCEEDINGS under Section 109 of the Code of Criminal Procedure were started against one Arjun son of Lala in the Court of the Sub-Divisional Magistrate, Ramtek. Arjun, who was in custody had applied to the Magistrate that he should be released on his personal bond. This application was rejected. Thereafter, on 10-8-1971 the present applicant filed an application accompanied by an affidavit that he was willing to stand surety for Arjun and that Arjun should be released on bail. The proceedings before the Sub-Divisional Magistrate show that the Magistrate had passed an order accepting the bail bond executed by the present applicant. The order-sheet itself does not disclose as to what was the amount for which the bond was to be executed but there is on record a bond in Marathi in accordance with Form XL1i of Schedule V to the Code of Criminal Procedure. Though the form has been filled in the name of Arjun and the printed matter in the form contains an undertaking that he would attend the Court whenever he is required to do so and that if he failed to attend, he shall forfeit an amount of Rupees 500/- to the State, no care has been taken to see that Arjun signed this undertaking or the bond. On the reverse of this form the present applicant, Mahadeo, has put his signature in token of his having executed the bond undertaking to see that the person released on bail would be present in Court whenever required to do so and that if he failed to attend, the applicant would forfeit the amount of Rs. 500/ -. It was this bond executed by the present applicant that was accepted by the Sub-Divisional Magistrate by his order dated 108-1971. It is unfortunate that the Magistrate himself did not apply his mind to the question of acceptance of the bond, nor has he taken care to see whether the bond has been properly executed or not, nor has he specified the amount of the bond in his order. It is this slovenly dealing with the matter that has created difficulties in the way of the State in the enforcement of the bond which could have been easily avoided if the Magistrate had been a little careful. It appears that Arjun was present in Court on 23-8-1971 and requested time for filing a statement. The case was adjourned to 10-9-1971 when Arjun remained absent, and in spite of repeated adjournments and issuing of a nonbailable warrant of arrest his presence could not be secured. Notice was, therefore, issued to the present applicant and when he failed to produce Arjun, the Sub-Divisional Magistrate passed an order on 16-8-1972 forfeiting the security of Rs. 500/-and directed that recovery proceedings should be started against the applicant surety. The applicant filed an appeal against the order of the Sub-Divisional Magistrate to the Additional District Magistrate, Nagpur, before whom it was urged, that the surety bond was not enforceable because Arjun himself had not executed any bond, and an alternative prayer was made that a part of the amount to be forfeited should be remitted. The learned Additional District Magistrate took a lenient view of the matter and modified the order of the Sub-Divisional Magistrate by reducing the amount to be forfeited to Rs. 300/ -. The applicant has now filed this revision application against that order.

(3.) THE main contention which is raised on behalf of the applicant is that the surety bond executed by the applicant is unenforceable because Arjun had himself not executed the bond and the entire proceedings for forfeiture of the bond were without jurisdiction. There is a divergence of judicial opinion on the question whether the liability of the surety on the basis of a surety bond executed by him in order to secure the release of a person on bail can be enforced if the accused or the person released on bail himself has not executed a bond. The learned Counsel on behalf of the applicant relied on certain observations of the Supreme Court in Bekaru Singh v. State of Utter Pradesh in support of his contention, as also the decision of the Patna, Orissa and Calcutta High Courts. A view contrary to the one which is canvassed on behalf of the applicant has been taken by the Allahabad and Madras High Courts, as also the Madhya Pradesh High Court. Mr. Mor, learned Assistant Government Pleader, relied on the decisions of these Courts and contends that notwithstanding the fact that Arjun himself has not signed the bond the obligation of the surety arises in an independent manner on the basis of the bond executed by him and could, therefore, be independently enforced. Before I notice the decisions taking the two opposite views, it is necessary to refer to certain provisions of the Code of Criminal Procedure. Section 499 of the Code reads as follows: 499 (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) * * * * (3) For the purpose of determining whether the sureties are sufficient, the Court may. if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further inquiry as it deems necessary. Section 500 provides that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released, and when such person is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him. I may refer to the provisions of Section 514-B which provide that when the person required by any Court or officer to execute a bond, is a minor, such Court or officer may accept, in lieu thereof a bond executed by a surety or sureties only. It is necessary to refer to the form of the bond which is prescribed in Form XLII in Schedule V to the Code. The form, in so far as the requirements of the present case are concerned, excluding the unnecessary words, will read as follows: I. . . being brought before the Magistrate. . . and required to give security for my attendance in his Court. . . do bind myself to attend at the Court of the said Magistrate on every day of the preliminary inquiry into the said charge. . . and in case of my making default herein, I bound myself to forfeit to Government. . . the sum of Rs. 500/ -. So far as the surety is concerned, the form of the surety bond will read as follows: I hereby declare myself surety for the said Arjun that he shall attend at the Court of the Sub-Divisional Magistrate, Ramtek, on every day of the preliminary inquiry into the offence charged against him and. . . in case of his making default therein, I bind myself to forfeit to Government the sum of Rs. 500/ -.