SANTOKH SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been preferred against the order of the Addl. Sessions Judge, No 2, Alwar, dated 12th April, 1979.

(2.) ONE case was registered on the report of one heera, for taking away one tractor No. PJA 1910 by Darshan Singh. On this report, the said tractor was seized by the police, and it was given to Darshansingh, on Supardginama. The learned Judicial Magistrate Kishangarhbaas ordered that the tractor be returned to Darshansingh on his furnishing a surety-bond in the sum of Rs. 15,000/ -. He further ordered that the plough and the 'chhatri' be also given to Darshansingh on Supardginama on his furnishing a surety bond in the sum of Rs. 2,000/ -. The petitioner, Santokhsingh stood surety for the tractor as well as the plough etc. On his furnishing surety-bonds the tractor and the other articles were handed over to Darshansingh. When they were required to be produced before the court, Darshansingh failed to produce them. As such a notice for forfeiting the surety-bonds, was issued to Santokhsing petitioner. He failed to satisfy the court. Therefore, the learned Magistrate directed that the surety-bonds of Rs. 15,000/- with regard to the tractor; and that of Rs. 2,000/- regarding the plough etc. , be forfeited. Against that order of the learned Magistrate, Santokhsingh petitioner preferred an appeal before the Sessions Court, Alwar, which was disposed of by the learned Additional Sessions Judge No. 2. Alwar. The learned Additional Sessions Judge while partly accepting the appeal of the petitioner, ordered to forfeit Rs. 10,000/-instead of Rs. 15,000/- for the tractor from the surety-bond of Rs. 15,000/ -. and Rs. 1,500/-instead of Rs. 2,000/- for the plough etc. from the surety-bond of Rs. 2,000/ -. Against that order of the learned Addl. Sessions Judge, the present revision petition has been preferred.

(3.) A similar matter under sec. 514. Cr. P. C. (old) was decided by a division bench of this Court in State vs. Ram Pratap (3 ). In that case, Ram Pratap was an accused who was tried for the offence u/ss. 302 & 307, IPC. He was acquitted by the Sessions Judge, Ganganagar. The State then preferred an appeal in this Court, against that order of acquittal. The said State-appeal was admitted by this division bench of this Court. While admitting the appeal, it was ordered that warrant of arrest be issued against Ram Partap, who would be before the District Magistrate, Ganganagar, and it would be for him to admit the accused on bail or send him to jail. The District Magistrate reported to this Court that the accused was arrested and released on bail on executing personal bond of Rs. 25000/- and a surety bond of Nathuram, in the like amount. The said State-Appeal was decided in their favour, and Ram Partap was convicted of the offence u/ss. 302 & 307, IP. C. The Sessions Judge, Ganganagar was directed to send the accused to Jail. As Ram Partap did not surrender, this Court ordered forfeiture of the personal bond as well as the surety-bond. A notice was given to the accused as well as the surety to pay the penalty of the said bonds or to show cause as to why the amount due, should not be recovered from them. On this notice, Nathuram appeared and filed a reply and contested the said notice. It was contended on behalf of the surety, Nathuram. that the surety did not bind himself to forfeit to the Government, the sum of Rs, 20,000/-, and as such that was not a bond executed under the provisions of the Code of Criminal Procedure, the penalty whereof could be realised from him under S. 514 2), Cr. P. C. while dealing with this aspect the division bench of this Court, observed as under : "the second point raised on behalf of the surety deserves serious con-sideration. Under S. 514, Cr P. C, it is only the bond taken under the criminal procedure Code that can be forfeited and it is in respect of only such bond that the person bound by it may be called upon to pay the penalty thereof. The bond in the instant case purports to be one under S. 91, Cr. P. C. In Schedule-V of the Code the specimen form under S. 86 is given. Under S. 555, Cr. P. C. the set forth in the Fifth Schedule that as the circumstance of each case require may be used for respective purposes therein mentioned, and if used shall be mentioned. A surety bond, should be in substance, in the form prescribed under S. 86 only with such variations, as were necessary. Barring such variations the form used must conform to the pattern given in the Fifth Schedule. This Schedule is a part of the Code and cannot be ignored except to the extent permitted by S. 555 Cr. P. C. In the forms prescribed for various bonds in Fifth Schedule, there is one impor-tant ingredient. In all these forms the executant binds himself to Government. In the bond of good behaviour, the executant binds himself to be of good behaviour, to Government and to all citizens of India. The form of every bond in the Fifth Schedule is that the executant binds himself to forfeit to the Government the amount. A bail bond may not be necessarily a contract. It is, however, an undertaking given by the executant and that undertaking must be in favour of the Government, the bond is not and no other person. If the undertaking is not in favour of the Government the bond is not one under the Criminal Procedure Code to which Section 514, may be attracted. A bail-bond is to be strictly construed and it is not permissible for a court of law to depart from the language of the bail bond and to interpret it in the light in which it was intended to be executed. It was also not permissible to a court of law to construe a bond in favour of the Government by its general tenor or by looking to the circumstances under which it was executed. Such in our view are the principles deductible from the pronouncements of their Lordships of the Supreme Court in State of Bihar vs. M. Homi (1) and Stale of Uttar Pradesh vs. Mohammed Sayeed (2 ). In the second case, the surety-bond was executed in 1953 u/s, 499, Cr. P. C. whereby the surety was to forfeit to 'the King Emperor Qaiser-e-Hind' a certain sum of money (Rs. 500/-) if he made a default in procuring the attendance of the accused before the Court. The bond was not one by which he bound himself to forfeit the said sum either to the Government of the Union of India or that of the State. It was held that no order of forfeiture could be passed against him with respect to the bond which was not one under the Code and which was unknown to law as contained in the Code at the time of its execution. (para 7) Applying the principle enunciated in this case to the instant case', we are of the opinion that the bond in this case did not provide forfeiture either to the Union of India or to the State of Rajasthan. The bond provided forfeiture of the Amount of Rs. 20,000/- to the court of District Magistrate, Ganganagar. This is not the form recognised by the Code of Criminal Procedure and so, no action can be taken u/s 514, Cr. P. C. against the surety for the forfeiture of the bond. In practically similar circumstances, Jia Lal Eilam J. in Balwant Singh vs. State (3), refused to forfeit the bond in which the surety had undertaken to deposit the sum of Rs. 1,500/- in the Treasury and had not bound himself to forfeit Rs. 1,500/- to the Government of Kashmir. We respectfully agree with the view taken in that case. " (para 8)