BAIDYANATH MISRA Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against the orders of the Courts below forfeiting his bond given in the following circumstances. One Santosh Kumar Puri of Sialkot was produced before a Magistrate on charges under Secs.419 and 420, Indian Penal Code, and was remanded to jail custody. The relatives of the accused arranged for bail, and the petitioner stood surety for him in the sum of Its. 500. The bond is in form 3, Schedule 5, Criminal P.C., under Section 86 of the Code and is dated 1-6-1945. The 1 part of the bond, which has to be given by the accused himself, has been cancelled by scoring through. In the 2nd part the space meant for the Court and the date of appearance have been filled in in a different ink and in a different hand from the writing in the rest of the bond. On 3-6-1945, the petitioner, finding that the accused with his wife had left Puri, informed the Sub- divisional Magistrate of his surreptitious disappearance from the jurisdiction of the Court, and asked for steps to be taken for apprehending him. The next day, on 4- 6-1945, the petitioner filed another application for the issue of a non-bailable warrant against the accused and for cancelling his bond, the next date of hearing being 20-6-1945. However, on 20-6-1945, the accused did not appear in Court. Consequently, the Court adjourned the case to 15-7-1945, and called upon the petitioner to pay the sum of Rs. 500 as the forfeit of the bail bond. The petitioner filed an appeal before the learned District Magistrate of Puri, who dismissed his appeal. Hence this application in revision,

(2.) It has been contended on behalf of the petitioner that the bail bond actually taken from him is not in accordance with the provisions of the Criminal Procedure Code, and, secondly, that the material particulars as regards the date of appearance and the Court before whom the accused had to be produced had been entered later when it was found that those entries were not there. The second contention may be at once disposed of by saying that, though there may be reasons to suspect that those entries may not have been there at the time the petitioner signed the bond, there is no definite evidence in support of that contention. The petitioner's argument on this part of the case is that he had not been given sufficient opportunity of adducing evidence is proof of that fact. But it does not appear that he raised any such contention before the learned Sub- divisional Magistrate. Hence, there is no question of his having had no opportunity of substantiating that case. In my opinion, this contention is not well founded.

(3.) But the contention based upon the form of the bond appears to be more substantial. A bond has to be taken in accordance with the provisions of the Criminal Procedure Code and in the appropriate form provided by the Code itself, the forms being a part of the statute. As already indicated the first part of the bond meant for execution by the accused himself has been entirely scored through. Hence, there is no bond given by the accused in this case for his appearance on a certain date before the Magistrate. Only the second part meant to be executed by the surety has been signed by the petitioner. It has been contended, and, in my opinion, rightly, on behalf of the petitioner that there is no such bond as is contemplated by the Criminal P. C., and, therefore, there is no power in the Code to forfeit such a bond. The power to forfeit is contained in Section 514 of the Code, and that section speaks of "a bond under this Code". It is provided by Section 499, Criminal P.C., that before any person is released on bail, or on his own bond, he shall execute a bond of a sufficient amount to be determined by the Court. Hence, in every case where he is released on his own bond, or where he is released on bail, there must be a bond executed by the accused himself to ensure his regular attendance in Court as and when and where required by the Court. The only exception to this rule is provided for by Section 514B in the case of a minor. In such a case the Court may accept a bond executed by a surety or sureties only in lieu of a bond by the accused himself. Hence, there is no escape from the conclusion that in the case of an adult person, before he is released from custody, the Court has got to take a bond from him ensuring his due attendance in Court. Unless such a bond is taken, there is no obligation on the part of the person released so to attend. In the present case no such bond was taken from the accused himself, with the result that he had every incentive to make himself scarce. Reliance has been placed on behalf of the Crown on the case in Indar V/s. Emperor A.I.R. 1940 Lah. 339. The learned single Judge who decided that case did not disagree with the decision in the earlier decision of the same High Court in Wadhawa Singh V/s. Emperor A.I.R. 1928 Lah. 318, in which another single Judge bad taken the view that without a bond being given by the accused himself for his regular appearance in Court there can be no valid security bond by a surety for the appearance of the accused. Neither of the judgments of the Lahore High Court makes any reference to the provisions of Section 499 of the Code referred to above. On the other hand, a single Judge of the Allahabad High Court has taken the view that the provisions of Section 499 as to the nature and contents of bonds are imperative, and that it is incumbent under that section to get a bond executed by the person who is released on bail, and that, in the absence of such a bond, there {can be no valid bond by the surety alone. The learned Judge of the Allahabad High Court has relied upon the decision of the Nagpur High Court in Emperor V/s. Chintaram A.I.R. 1936 Nag. 243. In my opinion, the learned Judge of the Allahabad High Court has taken the more correct view of the legal position in , Brahmanand Misra V/s. Emperor.