NARAIN SAHAI Vs. EMPEROR

JUDGEMENT

(1.) The question of law that arises in the present reference by the Sessions Judge of Fatehpur relates to the extent of the liability of a surety under what may be styled as the security sections in chap. 8, Criminal P.C. These sections are five in number. Section 106 makes provision for security for keeping the peace being demanded from an accused person on his conviction and Section 107 provides about a person being called upon to show cause why he should not be ordered to furnish security for keeping the peace in cases outside the scope of Section 106. Secs.108, 109 and 110 specify the circumstances in which a person may be called upon to show cause why he should not be ordered to furnish "security for good behaviour." Secs.112 to 119 of the Code enact the procedure that has to be followed in cases falling within the purview of Secs.107 to No. While it is a feature common to all the five sections that the person proceeded against is either ordered or is called upon to show cause why he should not be ordered to execute a bond "for keeping the peace" or "for his good behaviour," as the case may be, option is given by Secs.106,107 and 108 to the Courts concerned either to demand or not to demand sureties with respect to the bond to be eventually executed by the person concerned. Secs.109 and 110, on the other hand, give no such option and, if a person proceeded with under either of those sections is eventually bound over, he has to furnish sureties.

(2.) It is not and cannot be disputed that, if the person bound over under any of the five sections violates the terms of the bond executed by him, the bond stands forfeited and he is liable to pay the penalty specified in the bond or, in other words, to pay the amount mentioned in the bond executed by him, and the procedure for the realization of such penalty is prescribed by Section 514 of the Code. There is, however, divergence of judicial opinion on the question as to whether the liability of the sureties in such cases is only co-extensive with that of the person bound over or is a separate and independent liability enforceable against them, even though the penalty agreed to be paid by the person bound over is realized. So far back as in the year 1890 the Punjab Chief Court held that only one bond should be taken from the accused and his sureties for one determinate amount, the sureties engaging to be bound jointly and severally for the same amount as the accused, so that it may be realizable from any one of the obligors, and that it is not permissible to take separate bonds from the accused and his sureties individually and severally exceeding in the aggregate the amount for which the accused is liable : vide Jawaiya V/s. Empress ( 90) 30 P.R. Cr. 1890. The same view was reiterated by the same Court four years later and it was held in Kaku V/s. Empress ( 94) 26 P.R. Cr. 1894 that the bond executed by the principal and the bond executed by the surety are to be considered as one bond for one amount, and is discharged on forfeiture by the payment of the amount due by either the principal or the surety. To the same effect is the decision of the same Court reported in Ali Mohammad V/s. Emperor ( 11) 11 I.C. 588 and of the Lahore High Court in Emperor V/s. Abdul Aziz ( 24) 11 A.I.R. 1924 Lah. 262. The Lahore High Court in Harnam V/s. Emperor ( 25) 12 A.I.R. 1925 Lah. 228, adopted the same view. These cases are authorities for the proposition that a bond executed under the security sections is for one amount and is discharged on forfeiture by the payment of that amount either by the principal or the surety. All these five cases of Punjab are single Judge cases and were considered by a Bench of two Judges of that Court in Sardar Khan V/s. Emperor ( 37) 24 A.I.R. 1937 Lah. 133 and were disapproved. It was held by the Division Bench that a surety is "liable to pay the amount specified in the bond in addition to any amount that might be re- covered from the principal." The question was again considered by a single Judge of the same Court in Chanda Singh V/s. Emperor ( 40) 27 A.I.R. 1940 Lah. 32 who following the decision in Emperor V/s. Abdul Aziz ( 24) 11 A.I.R. 1924 Lah. 262 held that where the accused and his surety have executed bonds for keeping the peace, in the first place it is the principal bond which should be forfeited and it is only where that cannot be realized that the-surety is liable to pay. The decision of the Division Bench in Sardar Khan V/s. Emperor ( 37) 24 A.I.R. 1937 Lah. 133 was, however, not brought to the notice of the learned Judge and, as his decision runs counter to the decision in Sardar Khan V/s. Emperor ( 37) 24 A.I.R. 1937 Lah. 133, it is not of binding authority so far as the Lahore High Court is concerned.

(3.) The view that the liability of the surety is co-extensive with that of the person bound over and that such person and the sureties are jointly and severally liable for the sum named in the bond was adopted in the Court of Judicial Commissioner, Upper Burma, in King-Emperor V/s. Nga Kaung ( 5) 2 Cri.L.J. 463, as also by the Oudh Chief Court in Abdul Sattar V/s. Emperor ( 38) 25 A.I.R. 1938 Oudh 195. In the last mentioned case it was held that "the liabilities of the sureties under the Criminal P. C. are not different from; those of sureties under the civil law." The Calcutta High Court, on the other hand in Saligram Singh V/s. Emperor ( 09) 36 Cal. 562, held that upon the forfeiture of a bond by a person to keep-the peace...the surety is liable to pay the amount specified in his bond in addition to the penalty paid by the principal. This Calcutta decision in Saligram Singh V/s. Emperor ( 09) 36 Cal. 562 was followed by the Lahore High Court in 17 Lah. 5236 referred to above. The Sind Judicial Commissioner's Court in Jeomal V/s. Emperor ( 26) 13 A.I.R. 1926 Sind 180 and Abdul Karim V/s. Emperor ( 33) 20 A.I.R. 1933 Sind 320, and the Peshawar Judicial Commissioner's Court in Miram Shah V/s. Emperor ( 36) 23 A.I.R. 1936 Pesh. 141, took the same view as was taken by the Calcutta High Court in Saligram Singh V/s. Emperor ( 09) 36 Cal. 562. It would thus appear that the weight of authority is in favour of the view that the sureties under the security sections do not take responsibility for payment of the amount forfeited by the person bound over in the event of the latter failing to pay the same, but themselves incur an independent liability to pay the amount agreed to be paid by them in the event of the person bound over committing a breach of the peace or being guilty of misbehaviour. This view is in consonance with the decision of this Court in Queen-Empress V/s. Rahim Bakhsh ( 98) 20 All. 206 in which it was held that the object of requiring security to be of good behaviour is, not to obtain money for the Crown by the forfeiture of recognizances, but to insure that the particular accused person shall be of good behaviour for the time mentioned in the order.