PETITIONER: THE STATE OF UTTAR PRADESH Vs. RESPONDENT: MOHAMMED SAYEED DATE OF JUDGMENT: 26/03/1957 BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER BHAGWATI, NATWARLAL H. SARKAR, A.K. CITATION: 1957 AIR 587 1957 SCR 770 ACT: Surety bond-Undertaking to forfeit sum of money to King Emperor Qaisar-e-Hind on failure to Produce accused- Whether bond legal and enforceable-Code of Criminal Procedure, ss. 499, 514, and 555-Adaptation of Laws Order, 1950, cl. 4. HEADNOTE: In 1953 the respondent executed a surety bond undertaking to produce, the accused before the Magistrate and to forfeit Rs. 500 to King Emperor, Qaisar-e-Hind as penalty if he failed to do so. Upon his failure to produce the accused, the Magistrate forfeited the bond to the extent of Rs. 300. The contention of the respondent was that the bond not being in favour of the Government, could not be forfeited. Held, that the bond was a bond unknown to the law of the Republic of India under the Code of Criminal Procedure at the time of its execution and could not be forfeited. The respondent did not execute a bond by which he bound himself to forfeit the said sum either to the Government of the Union of India or that of the State of Uttar Pradesh. To' be a valid bond, the undertaking should have been to forfeit to the Government and not to the King Emperor. The words King Emperor Qaisar-e-Hind in the bond executed by the respondent could not be read, by virtue Of cl. 4 of the Adaptation of Laws Order, 1950, to mean Government. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 130 of
1955.
I Appeal under Article 134 (1) (C) of the Constitution of
India from the judgment and order dated March 11, 1955, of
the Allahabad High Court (Lucknow Bench) at Lucknow in
Criminal Revision No. 60 of 1954 arising out of the judgment
and order dated February 21, 1954, of the Sessions Judge at
Gonda in Criminal Appeal No. 292 of 1953.
G.C. Mathur and C. P. Lal, for the appellant.
1957. March 26. The Judgment of the Court was delivered by
IMAM J.-This is an appeal by the State of Uttar Pradesh
against the decision of the Allahabad High Court on a
certificate granted by that Court that the case was a fit
one for appeal to this Court,
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The undisputed facts are that one Mohammad Yasin was
prosecuted under s. 379, Indian Penal Code. He was released
on bail. The respondent along with one Ram Narain stood
surety for him, having executed surety bonds under s. 499 of
the Code of Criminal Procedure, undertaking to produce the
accused Yasin before the Court to answer the charge and to
forfeit Rs. 500 each to King Emperor Qaisar-e-Hind as a,
penalty if they failed to do so. Yasin absconded; All
attempts to secure his presence before the Court were of no
avail. Consequently notices were issued under S. 514 of the
Code of Criminal Procedure to the sureties to show cause
why their bonds should not be-forfeited. The Magistrate’
after giving the matter his consideration, ordered their
bonds to be forfeited to the extent of Rs. 300 each. The
respondent appealed to the Sessions Judge of Gonda who
dismissed his appeal. Dissatisfied with the orders of the
Magistrate and the Sessions Judge, -the respondent filed a
criminal revision in the High I Court and Mulla J. allowed
his application and set aside the order of the Magistrate
forfeiting the bond executed by him. At the request of the
Government Advocate the learned Judge granted the requisite
certificate by virtue of which the present appeal is before
us.
The only question for consideration is whether the bond
executed by the respondent was one under the Code of
Criminal Procedure and therefore capable of being forfeited
in accordance with the provisions of s. 514, Criminal
Procedure Code. Section 499 of the Code, requires that
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.
In Schedule V of the Code of Criminal Procedure various
forms are set out and a. 555 of the Code provides that
,subject to the power conferred by s. 554 and by
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Art. 227 of the Constitution, the forms set forth in that
Schedule, with such variation as the circumstances of each
case require, may be used for the respective purposes
therein mentioned, and if used shall be sufficient. Form
XLII of that Schedule sets forth the contents of a bond to
be executed by an accused and his surety. The bond is in
two parts-one part to be signed by the accused and the other
part to be signed by his surety or sureties. Both the
accused and the sureties in executing such a bond guarantee
the attendance of the accused in Court whenever called upon
to answer the charge against him and in case of default also
bind themselves to forfeit to Government the specified sum
of money mentioned therein. This is what the bond should
state since the Adaptation of Laws Order, 1950, dated
January 26, 1950. ‘Previous to that Order the word
Government did not appear in the bond. By virtue of cl. 4
of the said Order, whenever an expression mentioned in
column 1 of the Table thereunder occurred (otherwise than in
a title or preamble or in a citation or description of an
enactment) in an existing Central or Provincial Law whether
an Act, Ordinance or Regulation mentioned in the Schedules
to the Order, then unless that expression was by the Order
expressly directed to be otherwise adapted or modified, or
to stand unmodified, or to be omitted, there shall be
substituted therefor the expression set opposite to it in
column, 2 of the said Table. In column 1 of the Table the
words ” Crown ” ” Her Majesty ” and ” His Majesty ” appear
and against them in column 2 the word ‘Government” appears.
The plain reading of this clause is that wherever the words
” Crown “, “Her Majesty ” or ” His Majesty ” appear, for
them, the word ” Government ” shall be substituted in the
existing Central or Provincial Laws mentioned in the First
Schedule to -the Order. The Code of Criminal Procedure is
one of the Central Laws mentioned-in the said Schedule
wherein Schedule V of the Code of Criminal Procedure is
mentioned and the Order directs that throughout Schedule V
of the Criminal Procedure Code, except where otherwise
provided, for the words ” Her Majesty The Queen
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and “His Majesty The King” the word “Government” shall be
substituted. Previous to the Adaptation of Laws Order,
1950, there was the Adaptation of Laws Order, 1948 and the
words “Empress of India” appearing in the bond were repealed
and in place thereof the, words ” Her Majesty the Queen ”
were substituted. India attained Dominion status in 1947
and became a Republic in 1950. The Adaptation of Laws
Order, 1948 and that of 1950 were consequential upon the
change of status of India into a Dominion and then into a
Sovereign Republic. Since January 26, 1950, therefore, no
bond executed in favour of the Empress of India could be
said to be a bond executed under the Code of Criminal
Procedure. The bond which the respondent had executed was
to forfeit to the King Emperor a certain sum of money if he
made default in procuring the attendance of the accused
before the court. He did not execute a bond by which he
bound himself to forfeit the said sum either to the
Government of the Union of India or that of the State of
Uttar Pradesh. The bond executed: by him in 1953 was a bond
unknown to the law of the Republic of India under the Code
of Criminal Procedure at the time of its execution. Section
514 of the Criminal Procedure Code empowers a court to
forfeit a bond which has been executed under the provisions
of that Code and since the bond executed by the respondent
is not one under the Code of Criminal Procedure, resort
could not be had to the provisions of s. 514 of the Code to
forfeit the same.
It was, however, urged on behalf of the State that under cl.
4 of the Adaptation of Laws Order, 1950, the form of the
bond stood amended by the substitution of the word
“Government” therein in place and stead of the words “Her
Majesty The Queen” and the bond should be read accordingly.
The words King Emperor Qaisar-e-Hind must be deemed as no
longer existing in the forfeited bond. Clause 4 of the
Order, however, directs that the word “Government” shall be
substituted for the words ” Crown “, ” Her Majesty ” and ”
His Majesty “. There is no mention therein of the words King
Emperor or Emperor of India, Queen Empress or Empress of
-India or Qaisar-e-Hind as being so
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substituted. The words King Emperor Qaisar-e-Hind in the
bond executed by the respondent cannot therefore be read, by
virtue of cl. 4 of the Order, to mean Government. There has
undoubtedly been some error, carelessness or negligence on
the part of those on whom a duty lay to make the necessary
changes in the phraseology of the bond set out in Schedule V
of the Code of Criminal Procedure to be executed under s.
499. The fact, however, remains that the respondent had not
bound himself either to the Government of the Union of India
or that of the State of Uttar Pradesh to have his bond
forfeited on his failure to produce the accused before the
court and he is entitled to say that no order of forfeiture
could be passed against him with respect to a bond which was
not one under the Code and which was one unknown to the law,
as contained in the Code, at the, time of its execution.
The objection raised by the respondent to the order
forfeiting the bond executed by him is a substantial one and
the said order was made under a, misapprehension that it
could be made under s. 514 of the Code of Criminal
Procedure.
The appeal is accordingly dismissed.
Appeal dismissed.
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