SOHDEEN BAIGA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The applicant has furnished a surety bond of Rs. 1,000/- on 12-6-1979 before the Judicial Magistrate First Class, Mandla for continued appearance of accused Tulsiram who was being tried for offence under Section 436 of the Indian Penal Code. It appears that bail was granted to the said Tulsiram by an order 11-6-1979 passed by the Additional Sessions Judge, Mandla and consequent upon that order the appellant furnished bond as stated above. Since the bail bond was executed Tulsiram was released on bail. Thereafter, Tulsiram continued to appear before the Judicial Magistrate upto UHO-1979. On 18-10-1979 the case was committed to Sessions and Tulsiram was directed to appear before the Sessions Judge on 25-10-1979. On 25.10.1979 he did not appear. Thereafter, it appears that the bond furnished by him was forfeited. On 30-10-1979 a show cause notice purporting to be under section 446 (1) of the Code of Criminal Procedure was ordered to be issued to the appellant requiring him to show cause why he should not be required to pay the amount of bond furnished by him. The appellant submitted two replies and thereafter the impugned order has been passed on 29-11-1979 requiring him to pay the entire amount of Rs. 1,000/r. The present appeal is directed against this order.

(2.) The learned counsel first submitted that there was no bond in the eye of law and hence there was no obligation on the part of accused Tulsiram to appear before the Sessions Court on 25-10- 1979. I am unable to accept the argument. Accused Tulsiram, by the very condition of the bond, was bound to appear before the Judicial Magistrate and in fact, so appeared on several dates. He was also bound to appear before the Sessions Court on 25-10-1979 because of the directions given by the Judicial Magistrate. A bond is required to be given under section 446, Criminal Procedure Code, not only to appear before the Magistrate before whom such a bond is furnished but also for appearing before all other Courts to whom the case is transferred. Though the bond itself does not contain that the appellant had undertaken to keep the accused present before the Judicial Magistrate only, the bond is to be read in the context of section 446(1), Code of Criminal Procedure imposing the obligation to keep the person present even before the Sessions Judge. I however, find that the bond is not happily worded. A printed form has been used by the appellant for the purpose. It is because of this printed form that argument is being made in this Court. That it is not enforceable by the Sessions Court. The Court accepting surety bond should remember that they do not encourage practice of furnishing surety bonds in the present manner and style, but should see that the bond contains all details to bind the accused person to appear in all Courts where his presence may be required in the case concerned. Lot of time of this Court would be saved by adopting this method it was also to be realized by he persons furnishing surety bond that they are taking the accused person from the custody of the Court on the basis of the bond furnished by them. In the absence of a valid bond the legality of their taking away the accused person would become doubtful. They may even expose themselves to a charge of misleading the Court by furnishing illegal bond and taking away accused from lawful custody of the Court in an illegal manner. In order to avoid these complications it is in their own interest to furnish bond, as required by law.

(3.) The question however is whether the impugned order forfeiting the entire amount of the surety bond of Rs. 1,000/- is legal and justified. In reply to show cause notice it was submitted by the appellant that he had requested the accused to accompany him to the Court on 25-10-1979 and the accused had pleaded his povery for defraying the expenses of the appellant but had promised to attend the Court even without him. The appellant had also pleaded that he had helped police authorities in getting the accused person arrested. His further plea was that he was a marginal farmer and not in a position to pay the amount. None of these pleas have received any consideration from the learned Sessions Judge. A bald statement that does not permit this Court to examine the legality or validity of the order. It should be realized that the order is in fact penal in nature and has to be passed after considering all facts and circumstances of the case. It should appear from the order itself that mind has been applied to facts and circumstances and only thereafter the necessary conclusion has been reached. In the absence of these reasons the impugned order does not satisfy the requirement of section 446 of the Code of Criminal Procedure. It has therefore to be declared illegal.