BADRILAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal has been preferred under section 449 of Cr.P.C. against the order dt. 12.9.86 ordering recovery of amount of Rs. 5,000/ - from the appellant/surety in M.J.C. No. 20/86 of the Court of IInd A.S.J. Mandsaur.

(2.) THE facts leading to the present appeal are that, in S.T. No. 35/86 pending in the Court of IInd A.S.J. Mandsaur, the appellant Badrilal had stood surety and furnished surety bond for an amount of Rs. 10,000/ - for accused/Ramchandra, s/o Nagjiram, in pursuance of the order dt. 30.5.85 of High Court, as would appear from the surety bond filed in the record of the lower Court. His surety bond was accepted by the Court of CJM, Mandsaur. By the said surety bond, the present appellant/surety had undertaken to keep the accused/Ramchandra present in the Court of J.M.F.C. Naraingarh and also in other Courts where the case may be transferred on 14.6.85 and thereafter on subsequent dates, till judgment. It is not in dispute that, the accused/Ramchandra for whom the present appellant stood surety did not appear in the Sessions Court on 15.4.86. Therefore, the bail bonds and personal bonds were ordered to be forfeited and notice was issued to the appellant/surety to show cause as to why the amount of bond may not be recovered from him. The appellant/surety filed his reply. After consideration of the reply and hearing the parties by the impugned order, the learned IInd A.S.J. Mandsaur ordered that an amount of Rs. 5,000/ - may be recovered from the appellant/surety.

(3.) IN the present appeal, it has been mainly urged on behalf of appellant/surety that, the bond was defective and was not in the proforma as prescribed by form No. 45 of Schedule II of Cr.P.C. It was also urged that, by the said bond the appellant/surety had undertaken to keep the accused/Ramchandra present in the Court of J.M.F.C. Naraingarh and in such Courts where the case may stand transferred. However, since the case was committed to the Court of Sessions, it cannot be deemed to have been transferred to that Court and therefore, the surety was not bound to keep the accused present in the Court of Sessions. It has also been urged that, the personal bond of the accused has not been forfeited and amount had not been recovered from him, therefore the appellant/surety cannot be made liable for the payment of amount of surety bond. It has also been urged that, the accused had undertaken to pay the amount to the Government, therefore, the Court of Sessions was not entitled to recover the amount. As against this, learned counsel for State has supported the impugned order and has urged that, the amount of bond could be realised under section 446 of the Cr.P.C. and that, there is no error in the impugned order.