BHOLU Vs. STATE

JUDGEMENT

(1.) The facts of this case reported by the learned Sessions Judge at Hissar are that one Kanhaya Lal and another man were arrested by the Police in a case registered under Section 338, Indian Penal Code, a bailable offence, on the 6th of August 1948. Kanhaya Lal was released by the Police on a bail bond in a sum of Rs. 400/- in which Bholu, petitioner stood as his surety. Kanhaya Lal later absconded and in due course proceedings were taken against Bholu in the Court of a Magistrate at Gurgaon under Section 514, Criminal Procedure Code, and after the bond had been forfeited Bholu was ordered to pay a penalty of Rs. 250/-. His appeal was dismissed by the learned District Magistrate, but he moved the learned Sessions Judge in revision and the latter has forwarded this case to this Court with the recommendation that the order for the payment of Rs. 230/- be set aside. The bail bond itself does not state under what section of the Criminal Procedure Code it was executed, but presumably it was executed under Sections 496 and 499, the former of which provides for the release on bail either by the Police, or by a Court before whom he is brought of a person accused other than a person accused of a non-bailable offence arrested or detained without a warrant by an Officer in charge of a Police Station, while the latter section deals with the form of the bond. The terms of the bond to be executed mentioned in Section 499 are that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. The words in the present bond laying down the liability of the surety are as follows: "I will produce the aforesaid Kanhaya Lal when summoned and at the place where the Police orders."

(2.) The reason for which the learned Sessions Judge recommends the setting aside of the order penalising the petitioner is that these words in the bond are not sufficient compliance with the words of Section 499 as far as they relate to time and place where the surety was bound to produce the accused. This point appears to have been raised before the learned District Magistrate who dealt with it by saying: "His counsel has tried to make capital out of technical shortcomings in the bail bond, but I made him a sporting offer that in case he could produce the original culprit within a week, I would be prepared to remit the forfeited amount. He expressed his inability to do so. It appears that he is not at all keen to produce Kanhaya Lal, the culprit under Section 338, Indian Penal Code."

(3.) The learned Sessions Judge is quite right in observing that if the bail bond is defective in some essential respect, this would make the order for the payment of penalty illegal, and the learned District Magistrate was wrong in not considering the effect of this deficiency and he could not get over it by his so- called sporting offer. The question therefore to be considered is whether the bond was in fact so defective as to render the penal clause Inoperative. On this point the learned Sessions Judge has mentioned two decisions, the first of which is 'Emperor v. Chintabam'. Am 1936 Nag 243. In that case the surety had undertaken to produce the accused in "the Court at Bilaspur" till the decision of the case, there being apparently a number of Courts at Bilaspur, and it was held that the bond was defective as the particular court ought to have been mentioned and the order of forfeiture of the security was set aside. The other case is 'Brahma Nand v. Emperor', AIR 1939 All 682 in which the Nagpur decision was referred to with approval. In this case the words were even vaguer, as the liability of the surety was contained in words written by the Magistrate himself to the effect that the petitioner stood surety for a certain person "in case he is prosecuted and required by Court." It was held by Mulla. J., that the mentioning of a definite Court before which the accused person is to appear is an essential condition of such a bond, and hence no proceedings can be taken under Section 514 on a bond executed by the surety alone and which mentions no definite Court and time before which the accused was to appear. It may here be mentioned that in Schedule 5 to the Criminal Procedure Code which deals with forms there is a form of a ball bond to be taken by a Magistrate, but no form is prescribed for a bond to be taken by a Police Officer. On behalf of the State reliance was placed by the learned Assistant Advocate- General on a decision of Munir, J., reported as 'Kimatrai v. Emperor', AIR 1945 Lah 215, in which it was held that the words of Section 499 are wide enough to include a police station or a police office among the places which an accused person executing a bail bond may be required to attend, and hence the Magistrate admitting an accused person to ball before the completion of the investigation is competent to require him to appear before the police when needed. In this judgment the words of the ball bond in question are not quoted, and it is clear that the point involved was somewhat different, being whether a Magistrate could in admitting an accused person to bail require his attendance at the Police Station or Police Office as well as his attendance at hearings of the case in Court. The case reported as 'Mon Mohan v. Emperor', AIR 1928 Cal 261, was also cited. Here a bond executed in the Court of the Sessions Judge including the words "we shall produce or cause to appear the accused at the Sessions Court whenever called upon to do so" was held to be a valid bond within the words of Section 499, Criminal Procedure Code. It would thus be seen that in none of the four cases cited by either party was the bond taken by a Police Officer, but one point appears to be clear, viz., that although there may be some latitude as to the meaning' of the word "time" in section 499, which, with reference to a case in Court, it generally Interpreted as meaning whenever there is a hearing of the case, the dates of such hearings generally being unpredictable at the time of the execution of the bond, there is no such latitude with regard to the word "place." Thus when attendance in Court is in question a particular Court must be specified in the bond, and it seems to me that when the bond is for attendance at the wishes of the Police the place at which the attendance is required must also be specified even though the words "whenever required" would be sufficient as regards the time. The obvious place to name in such circumstances would be the local Police Station, and if these words had been entered in the present bond I should have held it to be quite valid within the meaning of Section 499, Criminal Procedure Code, but as no place is specified I consider that the bond was defective. I accordingly accept the recommendation of the learned Sessions Judge and set aside the order for the payment of Rs. 250/- as penalty by the petitioner. The amount, is to be refunded.