PETITIONER: RAMESH CHANDRA Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT14/10/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G. CITATION: 1972 AIR 16 1972 SCR (1)1084 1973 SCC (3) 689 ACT: Surety Bond-To Produce truck "whenever ordered by the court"Executed in one Sub-Divisional Magistrate's Court- Forfeited by another Sub-Divisional Magistrate's Court-Plea of jurisdiction cannot be raised for first time in the High Court-Plea one interlaced with questions of fact- Construction of bond. HEADNOTE: The appellant declared himself surety in the court of a Sub- Divisional Magistrate and bound himself to produce a truck "whenever ordered by the court" to produce. the same. He was given notice to produce the truck by another Sub- Divisional Magistrate in the same district and when he failed to produce the same the Magistrate passed an order forfeiting the surety bond and directing the realisation of the amount covered by the bond as fine. In his revision application before the High Court the appellant took a plea that the bond could be forfeited only by the court in which it was executed. The High Court did not allow the plea to be raised on the ground that the plea was not raised either before the Magistrate or before the Sessions Judge. Dismissing the appeal to this Court, HELD : (1) The High Court rightly refused the appellant permission to urge the ground as to want of jurisdiction. Such a plea of jurisdiction is interlaced with questions of fact. It may be that the case was transferred, or that a particular court was abolished, or that allocation of busi- ness was changed or redistributed. The records indicate many probabilities and that was why the High Court declined to go into the question. [1087 B] (2) Even if the appellant were permitted to raise this question in the present case without any question of fact and purely on the construction of the bond, it would appear that the appellant bound himself to produce the truck whenever ordered by the court to produce the same. There was no undertaking to produce the truck in a particular court. The undertaking was to the court of the Magistrate and the Magistrate exercises jurisdiction in the whole district under s. 12 of the Code of Criminal Procedure. The word 'court' in the bond in the present case means the Magistrate's court which dealt with the case. Furthermore, the bond provided that in case of default the appellant bound himself to forfeit to the Government the amount covered by the bond. [1088 C] Ballabhdas Motiram Gupta v. Emperor, A.I.R. 1943 Bom. 178, held inapplicable. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Civil Appeal No. 239 ,of
1968.
Appeal by special leave from the judgment and order dated
May 17, 1968 of the Allahabad High Court in Criminal
Revision No. 1130 of 1966.
E. C. Agarwala, for the appellant.
O. P. Rana, for the respondent.
1085
The Judgment of the Court was delivered by-
Ray, J. This appeal is by special leave against the judgment
dated 17 May, 1968 of the Allahabad High Court. The order
of the Allahabad High Court was passed on a revision
application of the appellant against the order dated 28
January, 1966 of the Civil and Sessions Judge, Agra
rejecting the revision against the order of the Magistrate
dated 5 June, 1965 forfeiting the surety bond of the
appellant and directing the sum of Rs. 20,000 be realised
from the appellant.
The bond came to be furnished by the appellant under these
circumstances. One Kishan Lal Gupta made an application for
obtaining custody of truck No. RJZ-1724 in the case of State
v. Sua Lal under the Essential Commodities Act in the court
of the Sub-Divisional Magistrate, Kiraoli Kheragarh. The
truck had been seized by the police on the allegation that
it was carrying, essential commodities to a prohibited area.
The truck was in the custody of the police at Fatehpur Sikri
Police Station.
On 16 December, 1963 the Sub-Divisional Magistrate Kiraoli,
Kheragarh, Agra ordered delivery of the truck be given on
furnishing two sureties of, Rs. 10,000 each with the
personal bond of the like amount. The prosecution filed a
revision against the order. The Additional District
Magistrate, Kheragarh rejected the revision application on 1
January, 1964 with the observation that it was for the
Magistrate to decide as to who was to be given temporary
custody of the truck and the matter required clarification.
The prosecution moved that the truck should be given to the
custody of the Manager, Government Roadways of the Regional
Transport Officer. Eventually, the Sub-Divisional
Magistrate Kiraoli-Kheragarh on 9 January, 1964 ordered that
the truck might be given to the custody of reliable and
independent person on furnishing two independent sureties of
Rs. 20,000 each and the personal bond of the like amount.
It is in this context of events that the appellant on- 13
January, 1964 in the court of the Sub-Divisional Magistrate,
Kiraoli-Klieragarh, Agra declared himself surety for truck
No. RJZ-1724 and gave a bond as follows –
“I do hereby bind myself to produce the said
truck whenever ordered by the court to produce
the same and in case of my making default
therein I bind myself to forfeit to the
Government the sum of Rs. 20,000”.
On 13 January, 1964 the appellant also gave a personal bond
that he owned property worth Rs. 1,05,000 and further
declared that be would not dispose of his property till the
bond is discharged by the Sessions Court.
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On 1 May, 1965 the Sub-Divisional Magistrate, Kheragarh gave
notice to the appellant and the other surety Kishan Lal
Gupta that the truck had not’ been produced in the court and
the sureties were informed to produce the truck in the court
of the Sub-Divisional Magistrate, Kheragarh on 10 May, 1965
and also show cause as to why the surety bond of Rs. 20,000
should not be forfeited.
On 5 June, 1965 the Sub-Divisional Magistrate, Kheragarh
passed an order recording that in spite of notices the
sureties did not produce the truck And failed to make any
response. The Sub-Divisional Magistrate further recorded in
the order that under order dated 10 May, 1965 the surety
bond was forfeited and notice was given to the appellant to
show cause as to why the said amount of the surety was not
to be realised from the appellant. In spite of service of
the notice on the appellant he did not make any response.
The Sub-Divisional Magistrate under these circumstances on 5
Juno, 1965 passed an order that the amount of Rs. 20,000 of
the surety bond should be realised from the appellant as a
fine.
The appellant made an application in revision against the
,order of the Sub-Divisional Magistrate. The application
was before the Civil and Sessions Judge, Agra who rejected
the revision application on 28 January, 1966.
The appellant thereafter went up in revision to the High
Court ‘at Allahabad against the order of the Civil and
Sessions, Judge ,dated 28 January, 1966. The High Court
said that there was no explanation as to why the truck was.
not produced. The High Court found it a clear case that
the entire amount of the bond be recovered from the
appellant. On behalf of the appellant prayer was made for
reduction of the amount. The High Court found no
justification for the same. Before the High Court the point
was raised that the surety bond was given in one court and
it was forfeited in another court. The High Court did not
allow the question to be raised on the ground that the point
had not been raised either before the Magistrate or the
Sessions Judge, and, therefore, the High Court declined to
allow any such question to be raised.
Counsel for the appellant contended that the bond was exe-
cuted in the court of the Sub-Divisional Magistrate, Kiraoli
and the order of forfeiture of the surety bond was passed by
the Sub-Divisional Magistrate, Kheragarh and it was only the
court of the Sub-Divisional Magistrate, Kiraoli which could
forfeit the bond amount and no other court could.
1087
The High Court rightly refused the appellant to urge this
ground as to want of jurisdiction of the court of Sub-
Divisional Magistrate, Kheragarh to forfeit the bond amount.
Such a plea of jurisdiction is interlaced with questions of
fact. It may be that the case was transferred from the
court of one Magistrate to the court of another. It may be
that a particular court is abolished and the jurisdiction of
the abolished court is transferred to the other court. It
may be that allocation of business is changed or
redistributed among Magistrates Court from time to time. If
this particular ground had been urged at the proper time
these facts could have been elucidated.
It will appear from the records that the surety bond was
given on 13 January, 1964 in the court of Sub-Divisional
Magistrate, Kiraoli Kheragarh, Agra. The personal bond of
the appellant was given on the same day before the same
Magistrate. The notice dated 1 May, 1965 for production of
the truck and for forfeiture of the surety money in default
of production was given by the court of Sub-Divisional
Magistrate,- Kiraoli Kheragarh, Agra and was signed by Sub-
Divisional Magistrate, Kheragarh. The order dated 5 June,
1965 was also by the court of Sub-Divisional Magistrate,
Kiraoli-Kheragarh, Agra and signed by Sub-Divisional
Magistrate, Kheragarh. The judgment dated 28 January, 1966
of the court of Sessions Judge, Agra also stated that the
case was pending before Sub-Divisional Magistrate, Khe-
ragarh. These facts indicate many probabilities and that is
why the High Court rightly declined to go into the question.
Counsel for the appellant relied on the provisions contained
in section 514 of the Criminal Procedure Code and the Bench
decision of the Bombay High Court in Ballabhdas Motiram
Gupta v. Emperor reported in A.I.R. 1943 Bom. 178 in support
of the proposition that the bond given to a court could be
forfeited only by that court. In the Bombay case the bond
was given by the accused for his appearance in the court of
the. Chief Presidency Magistrate. The bond was forfeited
by an order of the 8th Presidency Magistrate to whose court
the case had been transferred. The terms of the bond in the
Bombay case were that the accused bound himself to attend in
the court of the Chief Presidency Magistrate on 29 February
next to answer to the charge and to continue so to attend
until otherwise directed by the court. The accused attended
on 29 February and thereafter continued to attend the court
of the Chief Presidency Magistrate until 20 April when the
case was transferred to the court of Eighth Presidency
Magistrate. The accused continued to appear before the
Eighth Presidency Magistrate until 5 December when he made
the default. The question was whether the accused had
broken the condition and the bond. The Bombay High Court
came to
1088
the conclusion that he did not. The reason was that the
accused had undertaken to attend the court of the Chief
Presidency’ Magistrate and to continue so to attend, i.e.,
to attend the court of the Chief Presidency Magistrate until
otherwise directed by the court. It was held that the court
of the Chief Presidency Magistrate could direct the accused
to cease attendance in the Chief Presidency Magistrate’s
court but it could not direct him to attend some other court
which he had not undertaken to attend. On’ the construction
of the bond it was found that the accused did not commit a
breach of the bond.
Even if the appellant were permitted to raise this question
in the present case without any question of fact and purely
on the construction of the bond it would appear that the
appellant bound himself to produce the truck whenever
ordered by the court to produce the same. Therefore, there
was no undertaking to produce the truck in a particular
court. The undertaking was to produce the truck whenever
ordered by the court. The undertaking was to the court of
the Magistrate. The_Magistrate exercises jurisdiction in
the whole district under section 12 of the Criminal
Procedure Code. Furthermore, the bond provided that in case
of default the appellant bound himself to forfeit to the
Government the amount covered by the bond sum of Rs. 20,000.
Therefore purely on a construction of the surety bond the
appellant became liable to the State for the sum of Rs.
20,000 by reason of default to produce the truck when he was
called upon to do so. The word ‘court’ in the bond in the
present case will mean the Magistrate’s court which dealt
with the case.
The appeal, therefore, fails and is dismissed.
K.B.N. Appeal dismissed.
1089