NISAR AHMAD Vs. EMPEROR

JUDGEMENT

(1.) This revision has been filed by one Nisar Ahmad against whom proceedings under Section 514, Criminal P.C. have been taken by the learned Sub-Divisional Magistrate, Sadar, Gorakhpur. Karam Ali, his wife Shamsunnisa, and Sita Ram were sent up for trial on a charge of theft and of having received stolen property. It is difficult now to find out in which Court this case was pending. It was probably before the Sub-Divisional Magistrate, in the district of Gorakhpur. The accused had been released on bail. Tilak and Sudama were sureties for Karam Ali and Abdul Razak was surety for Shamsunnisa. Tilak and Sudama applied on 22nd September 1943 for the cancellation of the surety bond executed by them. It is mentioned in the affidavit filed by Nisar Ahmad that this application for cancellation of the surety bond was not placed before Mr. H. A. Siddiqi, Sub-Divisional Magistrate, who was seized of the case but before another Magistrate who passed the following order: "Submitted. Cancelled." The application itself was not addressed to any particular Court, but the heading merely was "Ba Adalat Faujdari". The provisions of Section 502, Criminal P.C. were not followed, and the Magistrate did not issue any warrant for the arrest of Karam Ali, nor did he call upon him to find other sufficient sureties. It is suggested that Karam Ali even before 27th September had absconded. Shaina, the brother of Karam Ali, and Mohamad Zaki, a petition-writer, are said to have approached Nisar Ahmed on 26 September 1943 and his signature was obtained on an application to stand surety for Karam Ali in place of Tilak and Sudama, the previous sureties. This application was put up before the same Magistrate who had passed the previous order dated 27th September and he on 29 September 1943 passed the following order on this application: "Shamil misil rahe." On 9 October 1943 the Sub-Divisional Magistrate transferred the case to the Court of one Mr. B. B. L. Mathur, Magistrate, First Class. On 27 October 1943, a notice was issued to Nisar Ahmad to produce the accused in Court on 4 November 1943. On that date the accused did not appear and a notice was issued to the applicant to show cause why the bond executed by him should not be forfeited. It does not appear from the record how the case came back to the Sub-Divisional Magistrate, but the Sub-Divisional Magistrate passed an order on 22 December, 1943 that Nisar Ahmad shall pay Rs. 250 as penalty under Section 514, Criminal P.C. and if this amount was not deposited by 29 December "warrants of attachment of property" shall be issued. Nisar Ahmad filed a revision against the order before the learned Sessions Judge of Gorakhpur, but the revision was dismissed on 9 August 1944. It is against that order that a further revision has been filed in this Court.

(2.) The first point taken on behalf of the applicant is that he filed the application before the Magistrate offering to stand surety for Karam Ali, but his application was attached with a blank printed form prescribed by the Criminal Procedure Code (Sch. 5, Form No. 42). This printed form has on one side a bond to be executed by the accused and on the other side the bond that has to be executed by the surety. It is suggested that the idea was that after the order of the Magistrate the form would be duly filled in by the accused. This blank printed form was not filled in and it is still attached to the application tiled on or about 27 September 1943. It is argued by learned Counsel appearing for the applicant that as there was no bond taken from the accused, the bond executed by the surety was invalid and was not enforceable. Reliance is placed for that proposition on a ruling of this Court reported in Brahmanand Misra V/s. Emperor . In that case Mulla J. held that Section 499, Criminal P.C. contemplated that there should be a bond executed by the accused and the law did not contemplate any person being released on bail without executing a bond himself merely upon an undertaking or security given by a surety and that where the accused has not executed a bond, the bond executed by the surety, according to his Lordship, was not a valid bond and was not enforceable. In support of this proposition reliance is also placed on a decision of the Lahore High Court reported in Wadhawa Singh V/s. Emperor ( 28) 15 A.I.R. 1928 Lah. 318 where Zafar Ali J. held that there could be no surety without a principal and where therefore no undertaking had been given by the person arrested to appear when called upon to do so, it was not possible for any person to declare himself surety for his appearance. This view was, however, dissented from by Skemp J. in Indar V/s. Emperor ( 40) 27 A.I.R. 1940 Lah. 339.

(3.) I am bound by the decision of this Court in Brahmanand Misra V/s. Emperor and if I were not in favour of the applicant on other points, pressed by learned Counsel, I may have found it necessary to refer this case to a larger Bench as with great respect and with a certain amount of diffidence, I do not feel inclined to agree with the view expressed in that ease. I am aware of the fact that that decision is by a learned Judge, who has great experience in criminal cases. It is no doubt true that Section 499, Criminal P.C. requires that the accused should execute a bond for such sum of money as the police officer or the Court, as the case may be, thinks sufficient and if he is released on bail then a bond has to be executed by one or more sureties. The section clearly contemplates two bonds, one by the accused and another by the surety or sureties. The form prescribed by the Criminal Procedure Code in Schedule 5 Form No. 42, also clearly shows that there have to be two bonds, one executed by the accused and the other by the surety, but, to my mind, in a case of this nature the obligation undertaken by the surety is entirely independent. It cannot be said, as has been said by Zafar Ali J., that the accused is the principal and the other person is the surety. The Court may require the accused and the sureties to give bonds for different sums. When, therefore, an accused person has been released on bail merely on the undertaking of the surety and bond is executed by the surety, without the accused having been required to execute a personal bond, it may be that the officer or the Court has acted in an irregular manner and the accused should not have been released on bail, but I do not see how that fact can in any way affect the liability of the surety who had undertaken to produce the accused before the Court on the date or dates mentioned in the bond.