NARENDRA NATH MAJUMDAR Vs. STATE

JUDGEMENT

(1.) The question which arises for my consideration in this Rule and on which there has been a difference of opinion between my learned brothers Guha Ray, J., and Sen. J., is whether a bail bond in a criminal case executed by the surety alone is valid in the absence of execution by the accused as well and whether such a bail bond can be validly forfeited under section 514 of the Code of Criminal Procedure. The facts are these:-The accused Siddiquar Rahaman was arrested on a charge under section 409 of the Indian Penal Code and was ultimately placed on his trial before the Special Judge, Jalpaiguri. He was at first released on bail on the 1st July, 1953, but his surety surrendered him on the 5th Aug., 1953, on which date he was ordered to remain in hajat. The prosecution examined its witnesses and proved a number of documents on the 5th and 10th Aug., and the prosecution was closed on the last mentioned date. Charge was framed against the accused and the case was thereafter adjourned to the 19th Nov., 1953 for cross-examination. On the 11th Aug., 1953, the accused applied for bail which was granted. The petitioner Narendra Nath Majumdar stood, surety for the accused on this date. On the 21st Sept., 1953, the Court shifted the date of the trial from 19th Nov., 1953, to the 13th Nov., 1953, and informed the Pleader for the accused as well as the Public Prosecutor of this change of date. On the 13th Nov., 1953, the accused did not appear and his lawyer applied for adjournment on the ground of the illness of the accused. This application was rejected and warrant of arrest was issued against the accused for his production and the surety was called upon to show cause why his bail bond should not be forfeited. The surety after taking several adjournments ultimately failed to produce the accused. The petitioner stood surety for the appearance of the accused and in case of his default bound himself to forfeit to the State a sum of Rs. 750 After hearing the cause shown by the petition the Special Judge, Jalpaiguri, passed order dated the 30th March, 1954, forfeiting the petitioner's bond to the extent of Rs. 250. Against this order the petitioner has obtained the present Rule. It appears that the bail bond upon which the accused was released on bail on the 11th Aug., 1953, was executed by the petitioner alone and not by the accused. Mr. Das Gupta appearing for the petitioner contends that such a bail bond is not contemplated by the Code of Criminal Procedure and as such it cannot be validly forfeited under section 514 of the Code of Criminal Procedure. There is a divergence of judicial decision on this point. Guha Ray, J., has taken the view that such a bail bond is invalid and as such it cannot be forfeited, whereas Sen, J., is of the opinion that the omission of the accused to execute the bail bond is at best an irregularity and is not such an illegality as to vitiate the bond and it can therefore be enforced against the surety who actually executed it.

(2.) Before proceeding to consider the conflicting rulings on this point, I propose to record my views on a plain construction of the relevant sections of the statute. Sec. 499 of the Code of Criminal Procedure contemplates two kinds of release, (1) a release of the accused on his own bond and (2) a release of the accused on bail. In both the cases it is essential that the accused shall execute the bond for such sum of money as the Court thinks sufficient. In the latter case, that is, when he is released on bail, an additional requirement is to be fulfilled and that is that the bond shall also have to be executed by one or more sufficient sureties. The net result therefore is that when the accused is released on his own bond, the execution of the bond by the accused himself is sufficient, but if he is released on bail, the bond must be executed by the accused as well as by the surety. Sec. 499 of the Code in my opinion, does not authorise the release of the accused on a bond executed by the surety alone. When, however, the accused is a minor, section 514B empowers the Court to accept a bond executed by a surety in lieu of a bond executed by the accused. The reason for this provision is obvious, because under the law a minor cannot be required to execute a bond nor can a bond executed by a minor is treated as valid. On a plain reading of these two sections therefore my conclusion is that unless the accused is a minor, he cannot be released on bail except on a bond executed by himself as well as by surety or sureties. The form of the bail bond executed in the present case is Form No. 3 of Schedule V of the Code of Criminal Procedure. This form consists of two parts, one of which is to be executed by the accused and the other is to be executed by the surety or sureties. The two parts are apparently independent of each other which has probably given rise to the view that each part can be enforced independently of the other. It has however to be borne in mind that the form is subject to the provisions of section 499 of the Code Criminal Procedure and cannot override those provisions. If I read the form in the light of the provisions of section 499 of the Code, the conclusion at which I arrived is that when the accused is released on his own bond, the execution of the first part alone is sufficient and the second part need not be executed at all unless of course the accused is a minor in which case the execution of the bond by the accused may be dispensed with and he may be released on the execution of the second part by the surety alone. When, however, the accused is released on bail, the execution of both the parts by the accused and the surety or sureties is essential except where the accused is a minor. To my mind, the combined effect of sections 499, 514B and Form No. 3 in Schedule V of the Code of Criminal Procedure is that the only case in which the accused can be released on a bond executed by the surety alone is when the accused is a minor. In all other cases, the execution of the bond by the accused is imperative. Mr. Bagchi appearing for the State has strongly urged that the two parts of the bond are independent of each other and each part can be enforced independently of the other. But I am afraid I cannot accept this argument. From analysis of section 499 which I have already given it is quite clear that the two parts of the bond must co-exist in order that an accused may be released on bail. In the present case it is admitted that the accused is not a minor. I have, therefore, no hesitation in holding that the so-called bail bond upon which the accused was released by the order of the court dated the 11th Aug., 1953, and which was executed by the surety alone is not a bail bond within the meaning of section 499 of the Code of Criminal Procedure.

(3.) The next question to which I have now to address myself is whether such a bond could be validly forfeited under section 514 of the Code of Criminal Procedure. The portion of section 514 which is material for the purposes of this case runs as follows:-