JEETMAL Vs. STATE

JUDGEMENT

(1.) THIS is a revision -petition by a person who had stood surety for one Laxminarayan. This Laxminarayan was being prosecuted under Sections 331 and 339 I.P.C. in the Court of the First Class Magistrate Ratlam. The surety executed a bond on 4 -8 -1955. Under the terms of this bond the surety had agreed that the accused Laxminarayan would remain present in the Court of the First Class Magistrate on date... month... year 19...and answer the charge for which he was arrested and would continue to remain present as long as the Court does not pass a contrary order and in default of this he would pay Rs. 2000/ -. On 6 -3 -1956 the accused Laxminarayan remained absent in the Court of First Class Magistrate Ratlam. An application was submitted on his behalf by his learned counsel for being exempted from appearance owing to his illness. A medical certificate was filed along with the application. The learned Magistrate rejected the application on the ground that the medical certificate did not show that the accused was not in a position to move about. The case was then ordered to be fixed on the following day i.e. on 7 -3 -1956 and witnesses who were present on the 6th were ordered to remain present on the 7th. On that date too the accused was absent although his counsel had agreed a day before that he would intimate to the accused the fact of rejection of his application. The Court thereupon declared the bond of the surety Jeetmal to be forfeited and directed to issue a notice to the surety to pay the amount of Rs. 2000 - or to show cause why the amount mentioned in the bond be not recovered from him. The case was fixed for hearing on 25 -3 -1956. On that date the surety appeared. It appears that in the notice that was issued to the surety the absence of the accused was mentioned to be in respect of the date 6 -3 -1955. The surety submitted a reply that he had filled the surety bond on 4 -8 -1955 and therefore he could not be held answerable in respect of the absence of the accused on 6 -3 -1955. It was further stated by the surety that the accused had been ill on 29 -3 -1956 and could not therefore remain present even on that day. The learned Magistrate thereupon rejected his contention and directed recovery of the amount of the bond.

(2.) AN appeal was preferred against that order to the District Magistrate, Ratlam, The learned District Magistrate appears to have mis -quoted the reply of the surety. The District Magistrate considered the objection of the surety to be that he had stood surety for appearance of the accused only for 4 -8 -1955 and that the accused was unable to remain present due to illness and that for that reason the surety was not responsible for his absence on 6 -3 -1956. This was in fact not the contention of the surety. What the surety had contended is already indicated above by me. The District Magistrate considered the surety's objection to be groundless and therefore dismissed the appeal.

(3.) MR . Chaphekar for the applicant contends that the bond which is sought to be enforced in the present proceedings is not in compliance with the provisions of Section 499 Criminal Procedure Code. It does not mention the date and the place where the accused was to remain present. He further contended that the notice that had been given to the surety was in respect of the absence of the accused on 6 -3 -1955 and that since he had stood surety only on 4 -8 -1955 he was not answerable for the absence of the accused earlier. He also had put forward the illness of the accused as the ground for his absence on 29 -3 -1956. It was therefore Incumbent upon the Magistrate either to accept his reply or to give a fresh notice with respect to the absence of the accused on 6 -3 -1956 thereby affording fresh opportunity to him to show cause why the amount of the bond ought not to be recovered from him.