PETITIONER:
RAM LAL
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT05/03/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
FAZALALI, SYED MURTAZA
CITATION:
1979 AIR 1498 1979 SCR (3) 448
1979 SCC (2) 192
ACT:
S. 499(1) Cr.P.C.-No personal bond taken from accused-
Nor was the signature of the accupsed taken on the reserve
of surety bond-Accused jumped bail-Sureties if liable-Bond
executed by surety if independent of the bond executed by
accused.
HEADNOTE:
Dismissing the appeal,
^
HELD: Section 499(1) of the Cr. P.C., which
contemplated the execution of a bond by the accused and by
the sureties, did not imply that a single bond was to be
executed by both the accused and the sureties, signed by the
accused and counter-signed by the sureties. An undertaking
of the surety in Form 42, Schedule V to secure the
attendance of the accused was quite independent of the
undertaking given by the accused to appear before the court
whenever called upon, even if both the undertakings of the
surety and the accused happened to be executed in the same
document for the sake of convenience. Each under taking
being distinct can be separately enforced. [450 C, 451 B-D]
The fact that an accused would not be released on bail
without his executing a personal bond does not mean that if
a person is released by mistake without his executing a
personal bond, the sureties are absolved from securing the
attendance of the accused and his appearance before the
court. The sureties' responsibility arises from the
exeeution of the surety bond and is not contingent upon
execution of a personal bond by the accused. Nor is the
liability to forfeiture of the bond executed by the surety
contingent upon the execution and the liability to
forfeiture of the personal bond executed by the accused. The
forfeiture of the personal bond of the accused is not a
condition precedent to the forfeiture of the bonds executed
by the sureties. [451 E-F]
Abdul Aziz & Anr. v. Emperor, AIR 1946 All. 116; Mewa
Ram & Anr. v. State, AIR 1953 All. 481; approved.
Bakaru Singh v. State of U.P., AIR 1963 SC 430;
distinguished.
Brahma Nand Misra v. Emperor, AIR 1939 All. 682;
Sailesh Chandra Chakraborty v. The State, AIR 1963 Cal. 309;
over-ruled.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
154 of 1972.
From the Judgment and Order dated 12-11-1971 of the
Allahabad High Court in Criminal Revision No. 865 of 1970.
Shiv Pujan Singh for the Appellant.
D.P. Uniyal and M. V. Goswai for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY J.-Jorma who was convicted by the
learned Sessions Judge, Dehradun under Section 302 Indian
Penal Code and
449
sentenced to suffer imprisonment for life, was directed by
the High Court of Allahabad to be released on bail on
furnishing bail to the satisfaction of the District
Magistrate, Dehradun. The District Magistrate (Judicial)
Dehradun ordered Jorma to execute a personal bond in a sum
of Rs. 5,000/- and to furnish two sureties in a sum of Rs.
10,000/- each. Ram Lal the present appellant was one of the
persons who executed a surety bond. Another, Abdul Jabbar,
also executed a surety bond. By some oversight no personal
bond was taken from Jorma nor was his signature taken on the
reverse of the bonds executed by the two sureties as
appeared to have been usually done. Jorma jumped bail and
the sureties were unable to produce him when required to do
so. The District Magistrate, Dehradun, therefore, forfeited
the surety bonds and issued a warrant of attachment against
the sureties under Section 514 of the Code of Criminal
Procedure, 1898. The appellant preferred an appeal to the
High Court of Allahabad against the order of forfeiture.
Before the High Court it was submitted that the surety bond
executed by the appellant could not be forfeite when no
personal bond had been taken from the accused who had been
released on bail. The High Court over-ruled the submission
of the appellant and confirmed the order of forfeiture. The
appellant has filed this appeal on a certificate granted by
the High Court under Article 134(1)(c) of the Constitution.
Shri Shiv Pujan Singh, learned Counsel for the
appellant submitted that the question of forfeiting the
surety bond for the failure of the accused to appear would
arise only if the accused himself had executed a personal
bond for his appearance. He submitted that someone must be
primarily bound before the surety could be bound and his
bond forfeited. He invited our attention to Section 499 of
the Code of Criminal Procedure, 1898, and form No. 42 of the
forms in Schedule V. He relied on the decisions in Brahma
Nand Misra v. Emperor, (1), and Sailash Chandra Chakraborty
v. The State(2). A reference was also to Bakaru Singh v.
State of U.P. (3) On the other hand the learned Counsel for
the State urged that the bond to be executed by the surety
was independent of the bond to be executed by the accused
and there was no impediment in the way of the forfeiture of
the surety bond even in the absence of a personal bond
executed by the accused. He relied upon the decisions in
Abdul Aziz & Anr. v. Emperor(4), and Mewa Ram & Anr. v.
State (5).
450
Section 499(1) of the Code of Criminal Procedure Code
1898 was in the following terms:
“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 persons 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”.
Now, this provision contemplated the execution of a bond by
the accused, and by the sureties. The provision did not
imply that a single bond was to be executed by the accused
and the sureties, as it were, to be signed by the accused
and counter signed by the sureties. Form No. 42 of Schedule
V, Code of Criminal Procedure, 1898, was as follows:
“XLII-bond and bail-bond on a preliminary Inquiry
before a Magistrate.
(See Sections 496 and 499)
I, (name), of (place), being brought before the
Magistrate of (as the case may be charged with the
offence of, and required to give security for my
attendance, in his Court and at the Court of Session,
if required, do bind myself to attend at the Court of
the said Magistrate on every day of the preliminary
inquiry into the said charge, and, should the case be
sent for trial by the Court of Session, to be, and
appear, before the said Court when called upon to
answer the charge against me; and, in case of my making
default, herein, I bind myself to forfeit to Government
the sum of rupees
Dated this day of 19
(Signature)
I hereby declare myself (or we jointly and
severally declare ourselves and each of us) surety (or
sureties) for the said (name) that he shall attend at
the Court of on every day of the preliminary inquiry
into the offence charged against him, and, should the
case be sent for trial by the Court of Session, that he
shall be, and appear, before the said Court to answer
the charge against him, and, in case of his
451
making default therein, I bind myself (or we bind
ourselves) to forfeit to Government the sum of rupees
Dated this day of 19
(Signature)”
The undertaking to be given by the accused as may be seen
from form No. 42 of Schedule V was to attend the Court on
every day of hearing and to appear before the Court whenever
called upon. The undertaking to be given by the surety was
to secure the attendance of the accused on every day of
hearing and his appearance before the Court whenever called
upon. The undertaking to be given by the surety was not that
he would secure the attendance and appearance of the accused
in accordance with the terms of the bond executed by the
accused. The undertaking of the surety to secure the
attendance and presence of the accused was quite independent
of the undertaking given by the accused to appear before the
Court whenever called upon, even if both the undertakings
happened to be executed in the same document for the sake of
convenience. Each undertaking being distinct could be
separately enforced. It is true that before a person is
released on bail he must execute a personal bond and, where
necessary, sureties must also execute bonds. There can be no
question of an accused being released on bail without his
executing a personal bond. But it does not follow therefrom
that if a person is released by mistake without his
executing a personal bond the sureties are absolved from
securing his attendance and appearance before the Court. The
responsibility of the surety arises from the execution of
the surety bond by him and is not contingent upon execution
of a personal bond by the accused. Nor is the liability to
forfeiture of the bond executed by the surety contingent
upon the execution and the liability to forfeiture of the
personal bond executed by the accused. The forfeiture of the
personal bond of the accused is not a condition precedent to
the forfeiture of the bonds executed by the sureties. The
Calcutta High Court in Sailash Chandra Chakraborty v. The
State (supra) and single Judge of the Allahabad High Court
in Brahma Nand Misra v. Emperor, (supra) proceeded on the
assumption that the bond executed by the accused and the
sureties was single and indivisible and if the accused did
not join in the execution of the bond, the bonds executed by
the sureties alone were invalid. We do not find any warrant
for this assumption in Section 499 of the Criminal Procedure
Code of 1898. We are afraid that there has been some
confusion of thought by the importation of the ideas of
‘debt’ and ‘surety’ from the civil law. As pointed out in
Abdul Aziz & Anr. v. Emperor(supra) under Section 499
Criminal Procedure Code, the surety did not guarantee the
payment of any sum of money by the person accused
452
who was released on bail but guaranteed the attendance of
that person and so the fact that the person released on bail
himself did not sign the bond for his attendance did not
make the bond executed by the surety an invalid one. In Mewa
Ram & Anr. v. State (supra) the difference between a surety
under the Code of Criminal Procedure and a surety under the
Civil Law was pointed out and the view taken in Abdul Aziz &
Anr. v. Emperor (supra) was reiterated. We agree with the
view expressed in Abdul Aziz & Anr. v. Emperor, and Mewa Ram
& Anr. v. State (supra).
In Bakaru Singh v. State of U.P., (supra) the question
presently under consideration did not arise. The question
which was considered in that case was whether it was
necessary that the personal bond of the accused should be
executed on the other side of the bond executed by the
surety on the same paper. It was held that it was not
necessary. And, it was pointed out that the mere fact that
form No. 42, Schedule V Criminal Procedure Code, printed the
contents of the two bonds, one to be executed by the accused
and the other by the surety together, did not mean that both
the bonds should be on the same sheet of paper. To the
extent that it goes the decision helps the State and not the
appellant. For the reasons stated above, the appeal is
dismissed.
N.V.K. Appeal dismissed.
453