MISSU RAM Vs. THE STATE

JUDGEMENT

(1.) This is a reference submitted to this Court for orders under Sec. 438 of the Code of Criminal Procedure. One Missu had stood surety for the accused Romesh Chand and several dates were fixed in the Criminal case on which dates the accused was obviously required to be present. Accordingly, on 29 -1 -1971 the accused was present, but Missu filed an application under Sec. 502 of the Code of Criminal Procedure and wanted him to be discharged as he no longer intended to stand surety for the accused. The learned Chief Judicial Magistrate did not pass any order on this application. Instead he fixed the other date which was 3 -2 -1971 for the appearance of the accused. On this date also the accused was found present but the surety was absent. Thereafter 28 -6 -1971 was again fixed in the case and the accused was reported to be absent. Subsequently on 27 -11 -1971, the learned Chief Judicial Magistrate instead of proceeding under Sec. 502 of the Code of Criminal Procedure, considering that the surety Missu had forfeited his bond under Sec. 514 not only forfeited the bond but also ordered for the attachment of the properties of Missu.

(2.) Missu evidently felt aggrieved of the order of the Magistrate and came in revision before the learned Additional Sessions Judge, Dharamsala. His revision has been accepted and according to the finding of the learned Sessions Judge, the Magistrate failed to exercise jurisdiction under Sec. 502 and instead of forfeiting the bond under Sec. 514, he should have discharged the surety either on 29 -1 -1971 or on 3 -2 -1971 when the accused was admittedly present in Court. Accordingly, the learned Sessions Judge has recommended to this Court that the order of the learned Magistrate, dated 27 -11 -1971, wherein he has forfeited the bond and has further ordered for the attachment of the properties of the surety, be quashed.

(3.) It is abundantly clear from Sec. 502, that the only condition required for the cancellation of surety bond is that the accused should be present before the Court. In case he is not present, the Magistrate has to issue a warrant for his arrest. On the next day when he appears before the court there is no escape for the Magistrate but to cancel the surety bond at the request of the surety. In the instant case, on two specific dates, 29 -1 -1971 and 3 -2 -1971, the accused was present in the Court and, therefore, this condition was satisfied. As such the learned Sessions Judge is correct when he concludes that it was incumbent upon the Magistrate to have proceeded under Sec. 502. He should have straightaway cancelled the surety bond and would have asked the accused to furnish fresh sureties. This he never did. Instead he waited for 28 -6 -1971 and when the accused was found absent, he ordered the forfeiture of the bond on 27 -11 -1971 which was in fact a faulty procedure. It was not required of the surety to have waited for the order of the Court when the accused was present on 29 -1 -1971 when the application for cancellation of surety bond was moved and also on 3 -2 -1971 to which date the case was adjourned for the appearance of the accused. On the latter date also the accused was present although the surety was absent. In fact the presence of the surety was not required on that date.