GANDHI Vs. STATE

JUDGEMENT

(1.) IN proceedings Under Section 107; of the Criminal procedure Code, Dilbara Singh alias Bhola Singh, Ganda Singh alias Gandhi and Sukhdev Singh, three of the five petitioners before me, were' bound down, and they furnished personal bonds in the sum of Rs. 1000/each on 6th August, 1956, for keeping the peace, Each, one of them also furnished one surety each in the same amount. , Ganda Singh alias Gandhi stood surety for Dalbara Singh, Ajmer Singh petitioner for Ganda Singh alias Gandhi, and Bhan Singh petitioner for Sukhdev Singh. Despite these preventive measures, the parties came to a clash with Diwan Singh, son of Mu-kand Singh, at whose instance they had been earlier bound down Under Section 107 of the Criminal Procedure Code. This was on 9th December 1956, when their bonds, which were. for a period of one year, were still in force. That fresh incidental led to the conviction of Dalbara Singh,, Gandhi and Sukhdev Singh petitioners under seedier 307/34 of the Indian Penal Code. Thereupon Diwan Singh applied to the Additional District Magistrate, Bhatinda, for forefeiture of the bonds furnished by these three petitioners and their sureties under stcuoti 107 of the Criminal Procedure Code. The learned Magistrate accepted the application vide his order, dated 21st June,. 1958, and forfeiting the bonds, directed Dalbara Singh and his surety Ganda Singh to pay Rs. 1000/- each. In the case of Gandhi and Sukhdev Singh, he, however took a lenient view and called upon each one of them and their respective subtle to pay Rs. 500/- each. This order was upheld by the District Magistrate, Bhatinda, who dismissed the petitioner's appeal on 18thi April, I960. It is against the appellate order that Gandi Singh and others have come up in revision this Court.

(2.) THE only ground on witch the order o' the Court below is assailed is that the bonds furnished by the sureties could not be forfeited nor could? they be called upon to pay the amount of the bond or any part thereof until the parties for whom they had stood sureties had committed a. default in payment or nothing could he realized from them. In this connection, he relies upon Section 128 of the Indian Contract Act which lays down that the liability of the surety is coextensive with that of the principal debtor, unless it was otherwise provided by the contract. He also cites Abdul Sattar v. Emperor A. I. R. 1938 Oudh 195, and Namdeo Cmmanji v. Emperor A. I. R. 1938 Nag 275. In these cases, it was held that where a person executes a bond Under Section 117 (9) of the Criminal procedure Code for a certain sum and the sureties each sign, a bond for the same amount, the sureties being jointly and severally liable, a sum more than that for which they are jointly liable cannot be recovered from them. A contrary view was, however, taken by a Division Bench of the Lahore High Court in Sardar Khan v. Emperor A. I. R. 1937 Lah 133, and it was specifically ruled that when a bond is executed by the surety under the preventive provisions of the Criminal Procedure Code, the surety is under obligation to pay the amount under the bond in the event of breach of peace by the principal even where payment is made by the principal of the amount due under his own bond. Earlier decisions of that Court and the Chief Court of Punjab, reported as Kaku v. Empress 26 Pun Re (Cri) 1894; Emperor v. Abdul Aziz ILR 4 Lah 462 : A. I. R. 1924 Lah 262 and Harnam v. Emperor ILR 5 Lah 448 : A. I. R. 1925 Lah 228, were expressly Overruled. This view is consistent with the Rule laid down by a Full Betach of the Allahabad High Court in Narain Sahai v. Emperor A. I. R. 1940 All 333, and with respect, I follow the same in preference to the Single Bench decisions of the Nagpur and Oudh Courts referred to above.

(3.) I, however agree with the petitioners' learned Counsel, Shri M. R-Sharma, that in, the circumstances of th0 case, a lenient view should have been taken in the case of sureties. I accordingly order that Ajmer Singh and Bhan Singh who stood sureties for Ganda Singh alias Gandhi and Sukhdev Singh, respectively, shall pay Rs. 250/- each. Ganda Singh, in his capacity as surety of Dalbara Singh, shall pay Rs. 500/ -. I, however maintain the orders of the Courts below directing that the entire amount for which Dalbara Singh had fmnishqd personal bond in the sum of Rs. 1000/- be recovered from him, and Rs. 500/. each from Ganda Singh alias Gandhi and Sukhdev Singh, consequent upon the forfeiture of the personal bonds furnished, by each one of them Under Section 117 (3) of the Criminal Procedure Code. In other words the following amounts shall kg, recoverable from the various petitioners as a result of the forfeiture of their bonds: