YADAVRAO NAGUJI PATHARE Vs. STATE

JUDGEMENT

(1.) THE applicant Yadavrao executed a surety bond for Rs. 600/- on August 10, 1951 for one Rameshchandra, who was put up for trial under Section 379, I. P. C. before the Railway Magistrate, Indore. As Rameshchandra, the accused failed to appear in Court on 30-8-1951, which was the date of hearing, a notice was issued to the surety to show cause why the surety bond should not be forfeited. On 19-101951 the surety applied to the Court for a warrant of arrest against the accused alleging that he had absconded. The prayer of the surety Was granted and a warrant was issued to arrest the accused. Thereafter neither the accused nor the surety appeared before the Court and the trial Court ordered the surety bond to be forfeited. The surety appealed to the District Magistrate against the order forfeiting the surety bond but the appeal Was dismissed. Thereupon the surety preferred a revision application in the Court of the Sessions Judge at Indore but the revision application also did not succeed. The surety has therefore preferred this revision application to the High Court.

(2.) THE surety bond which was executed by the surety on 10-8-1951 provided that the accused would remain present in Court on 30-81951 and on all subsequent dates and that in case of default he, the surety, would pay to the Government of Madhya Bharat a sum of Rs. 600/ -.

(3.) MR. Pande, the learned Counsel for the petitioner contended that this bond was not in conformity with the form No. 42 of Schedule V of Criminal P. C.- as applied to Part "b" States, The objections of the learned Counsel were directed against the undertaking to pay Rs. 600/- to the Madhya Bharat Government. The learned Counsel urged that according to the form prescribed the surety had to bind himself to "forfeit to the Government of India" the sum specified in the surety bond. For the proposition that the bond which was not in accordance with the prescribed form was void and not enforceable in law Mr, Pande relied on a decision of Bose J. in - 'emperor v. Chintaram' AIR 1936 Nag 243 (A), In that case the terms of the bond provided that the surety will produce and continue to produce the accused until the date of the judgment in a particular Court. It was held that it was beyond the power of the Court to insert such a condition in the bond, for Section 499, Criminal P, C. is exhaustive of the conditions that can be imposed on sureties, The learned Judge further observed: The matter is not like an ordinary contract in which the parties are at liberty to choose their Own terms. It is a special proceeding governed by special laws and must conform strictly to them. This case has no application to the present case as it cannot be suggested that the Court has imposed any term which is not permitted by Section 499. Besides I have been referred to the amended form No. 42 where the word is "government" not the Government of India or the Central Government. Section 565 provides that the forms prescribed in the fifth Schedule may be used, with such variations as the circumstances of each case require. Under the present Constitution every State is a juristic person entitled to enter into contract and to sue or be sued in the name of the State. Administration of Justice, Constitution and organisation of all Courts, except the Supreme Court and High Court is State-subject included in list 2 of the Seventh Schedule of the Constitution of India and the amount of fine is payable to the State Government, Under the circumstances the bond cannot be described to be void or unenforceable.