BRAHMA NAND MISRA Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by one Brahmanand Misra from an order passed against him under Section 514, Criminal P.C., forfeiting a portion of a bond executed by him in the following circumstances : The applicant was one of several candidates for a seat on the Cawnpore Municipal Board at an election held in December 1936. A man named Ganga Kishan acted for him as well as for another candidate as an identifier of the voters who came to the polling station and asked for ballot papers. It appears that a man accompanied by Ganga Kishan came to the polling station and called for a ballot paper in the name of one Madan Kahar. He was identified in the ordinary course by Ganga Kishan, but his effort to obtain a ballot paper did not succeed because an objection was taken on behalf of another candidate to the effect that the man was falsely personating another voter whose name was entered in the list. The objection was upheld by the Presiding Officer who happened to be a Magistrate of the First Class named Mr. Niaz Mohammad. The Magistrate put Ganga Kishan under arrest apparently for having committed an offence under Section 171-D, I.P.C., but released him 3oon afterwards on the present applicant giving him an undertaking to produce Ganga Kishan if necessary for a trial later on. The undertaking was scribed by the Magistrate himself in the following terms: Mr. Brahmanand undertakes and stands surety of Rs. 500 for B. Ganga Kishan, identifier, in case he is prosecuted and required by Court.

(2.) This undertaking which is obviously couched in extremely vague language has been treated by the prosecution as a bond under Section 499, Criminal P.C., which has been forfeited. It may be mentioned here, and it is a very important fact that no bond was taken from Ganga Kishan himself. I have seen the record of the case myself and have also asked the learned Deputy Government Advocate to do so, but there is no trace of any such bond, so that It was a curious case of a man being released on bail without executing any bond himself merely upon an undertaking given by another person as a surety. As might well have been expected in these circumstances Ganga Kishan who had nothing to lose absconded and the present applicant, in spite of every possible effort on his part, failed to produce him later on when he was required for being tried on a charge under Section 171-D, I.P.C. A notice was then given to the present applicant to show cause why his bond should not be forfeited and a Magistrate of the first class named Mr. Altaf Husain ultimately passed an order to the effect that the bond furnished by the applicant was forfeited to the extent of Rs. 125. It is from this order that the applicant has come up in revision to this Court. Two points have been urged on behalf of the applicant; firstly that Mr. Niaz Mohammad could not take cognizance of an offence under Section 171-D, I.P.C., without the previous sanction of the Local Government and hence he had no jurisdiction to arrest Ganga Kishan and to demand any security from the present applicant : secondly that the undertaking given by the applicant which has been treated as a bond under Section 499, Criminal P.C., does not fulfil the imperative requirements of that Section inasmuch as it does not fix any time or place for the appearance of the accused person and hence it is not legally enforceable. With regard to the first contention it is enough to point out that Mr. Niaz Mohammad when he put Ganga Kishan under arrest was not functioning as a Court but only as a Magistrate acting under Section 64, Criminal P.C., which runs as follows: When any offence is committed in the presence of a Magistrate within the local limits of his jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail commit the offender to custody.

(3.) The word "offence" used in Section 64, Criminal P.C., is obviously wide enough to include an offence under Section 171-D, I.P.C. Mr. Niaz Mohammad being a Magistrate and the offence having been committed in his presence he was in my opinion fully authorized to arrest the offender Ganga Kishan and to release him on bail. It has however to be borne in mind that the release on bail was to be governed by the provisions contained in the Code. Section 196, Criminal P.C., does not control the powers of a Magistrate under the Code, but only prevents a Court from taking cognizance of certain offences without there being a com-plaint made by order of or under authority from the Governor-General in Council, the Local Government or some officer empower, ed by the Governor. General in Council in this behalf. There is consequently no force in the first contention urged on behalf of the applicant that Mr. Niaz Mohammad had no jurisdiction to arrest Ganga Kishan and to release him on bail inasmuch as he could not take cognizance of the offence under Section 171-D, I.P.C. The other contention is however well founded and must prevail. The release of an accused person on bail and the conditions under which that is permitted by the law are governed by Section 499, Criminal P.C., and the provisions laid down in that Section as to the nature and contents of the bail bond are in my judgment imperative and must be strictly fulfilled. The Section runs as follows: Before any person is released on bail or released on his own bond, a 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.