RAMSARAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners in this case have been convicted under Sections 143, 353 and 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three months each under Section 143, but no separate sentence has been passed under the other two sections. The prosecution story, stated briefly, is as follows: Certain persons, including one Sarjug Rat, were standing trial before Mr. H.N. Khan, Magistrate First Class, Begusarai, Sarjug Rai was ordered to be released on bail of Rs. 1,000/- with two sureties of the like amount. Parmeshwari Rai, petitioner No. 2, and one Geeta Rai stood sureties for him, and both executed a bail bond on 1-1-1956. The bail bond was executed on the old form No. 42 of Schedule V of the Code of Criminal Procedure, which contained the words 'Qaisar-e-Hind' (King Emperor of India) as being the persons in whose favour the bond was being executed. Sarjug Rai did not appear in court, and the bailors, though asked, failed to produce him in Court. The bail bonds were, therefore, forfeited, and a notice was sent to petitioner No. 2. one of the bailors, under Section 514 of the Code of Criminal Procedure, to show cause why he should not pay the penalty. The petitioner showed cause, but that was not accepted by the Magistrate, and, on the failure of the petitioner to pay the amount, a distress warrant was issued which was endorsed in favour of the Assistant Sub-Inspector of Police, Dinanath Misir, by the officer in charge of Teghra police station. On 3-7-1957, this Assistant Sub-Inspector, along with a constable (P. W. 4). went to execute the distress warrant. Petitioner No. 2 was asked to pay the amount, but he refused to do so, and, thereupon, the Assistant Sub-Inspector attached his two cows, one calf, three goats and two kids. When he proceeded towards the thana along with the attached cattle and came near a mango orchard, the petitioners are said to have arrived there and to have forcibly rescued the three goats and the two kids from his lawful custody. There was a hulla and some witnesses came there who saw the occurrence. The Assistant Sub-Inspector of police, thereafter, went with the remaining cattle to the thana where he gave a written report before the Sub-Inspector of Police, and a formal first information report was drawn up on its basis. After enquiry, a charge-sheet was submitted against the petitioners, who were put on trial under the sections noted above. The defence pleaded their innocence and denied the entire occurrence. The trial Court accepted the case of the prosecution and convicted and sentenced the petitioners as stated above, and the order of conviction and sentence passed by it was confirmed in appeal by the appellate Court. Being thus aggrieved, the petitioners have moved this court in revision.

(2.) The only point that has been raised in support of the application on behalf of the petitioners is that the distress warrant issued by the Court was illegal as the forfeiture of the bond itself Was illegal. It is submitted that the bond was executed in favour of Qaiser-e-Hind, and, as such, after India became a Republic, it could not be said to have been executed under the provisions of the Code of Criminal Procedure, and could not, therefore, be forfeited under Section 514 of that Code. The contention is that the bond in the present case was executed in favour of Qaise-e-Bind, that is, King Emperor of India; but, after India became a Republic, there is no King Emperor for India, and the bond executed in favour of King Emperor could not be forfeited to Government. It fs further contended that, as the bond could not be forfeited to Government, the distress warrant issued for the realisation of the penalty was absolutely without jurisdiction and illegal, and that the petitioner had a right, in self-defence to protect their cattle from being attached in pursuance of the illegal distress warrant. This point was not taken in either of the Courts below. Since, however, it is a pure question of law, it can very well be raised even for the first time in the High Court in revision.

(3.) I have looked into the bond, which is OH the record, and it is in favour of Qaiser-e-Hind. Counsel for the State also has not challenged the existence of the bond in favour of Qaiser-e-Hind' Schedule V of the Code of Criminal Procedure gives the form of the bond which was to be executed under Section 499 of the Code for the attendance of the accused persons. Sub-section (1) of that section states that before any person is released on bail or released on his own bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and. when he is released on bail, by one or more sufficient sureties conditioned 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. Form No. 42 of Schedule V is in two parts. The first part is to be executed by the accused himself, and the second part is to be executed by the surety or sureties. Before India became a Republic, the above bond, as the form then stood, was to be executed in favour of the Empress of India. It appears that the same form was used in the present case even after India became a Republic. It is contended that, as the bond was executed in favour of Qaiser-e-Hind, and not Government, and, as there is no King Emperor in India now, it had no legal force and was absolutely invalid so as to be acted upon. Section 514 of the Code of Criminal Procedure deals with forfeiture of a bond, and it says, in sub-s, (1), that whenever it is proved to the satisfaction of tho Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or, when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. Thus a bond which could be forfeited under this section was a bond taken under the provisions of the Code of Criminal Procedure. After India became a Republic, the above form No. 42 was amended by the Adaptation of Laws Order, 1950, and a plain reading of Clause (4) of that Order shows that whenever the words "Crown" "Her Majesty" and "His Majesty" appear, the word "Government" had to be substituted in the existing Central of Provincial laws mentioned in the first schedule of the Order, which includes the Code of Criminal Procedure. It has, therefore, been urged that the bond executed in favour of Qaiser-e-Hind was not a bond in favour of the Government and could not be treated as such even under the Adaptation of Laws Order. The point though technical, is a substantial one, and cannot but be given effect to.