1. This is a revision against the order of the District Magistrate dismissing the appeal petition filed under Section 515 Cr. P.C. by which the District Magistrate confirmed the order of the Munsiff-Magistrate, Dharmanagar forfeiting the two bail bonds given by the petitioner as surety for two of the accused persons in G. R. case No. 14 of 1957 in which they were charged under Section 324 I.P.C. and issuing distress warrant for payment of the amount so forfeited
2. The petitioner is a pleader practising in Dharmanagar Courts. He stood surety for the two accused Muchabbir Ali and Taleb All in the above case and he executed two surely bonds on 5-12-1958 agreeing to produce them in Courts on the dates to which the case was posted. On 8-5-1959 Muchabbir Ali and Taleb Ali were absent in Court and it was stated for the prosecution that they had proceeded to Pakistan.
It was, however, mentioned for the surety that they were ill and that they would be produced at the next hearing on 20-6-1959. On 20-6-1959 also they were absent and it was admitted by the surety that they had left for Pakistan. Thereupon the Court issued notice to the petitioner to show cause why the bail bonds should not be forfeited.
3. On 23-7-1959 the petitioner filed a petition stating that the two accused persons were absent and that he was in search of them and wanted one month's time to produce them. This petition was taken up on 31-7-1959 to which date the case had been posted and the learned Magistrate passed an order forfeiting the bail bonds and calling upon the surety to pay the amounts forfeited within 7 days and the case was posted to 5-9-1959. Fresh show cause notice under Section 514 Cr. P.C. was also given to the petitioner after forfeiting the bonds.
4. On 20-8-1959 the petitioner filed another petition stating that he was not in a position to produce the two accused persons and praying that a nominal amount may be forfeited and that he may be excused from paying the balance amounts under the bail bonds. The Court rejected the petition on 21-8-1959 and directed him to pay the entire amount. Again on 5-9-1959 a third petition was filed by the petitioner to relieve him against the forfeiture of the bail bonds and to accept a nominal amount, but that petition was also rejected by the Court stating that it did not deserve any consideration.
Then the petitioner filed an appeal to District Magistrate for cancellation of the order of the Munsiff-Magistrate. On the date to which the appeal was posted namely, 22-12-1959 the petitioner was absent and the District Magistrate passed an order after perusal of the record that he did not find any reason to interfere with the order of the lower Court and that the appeal was dismissed.
5. In revision it is now contended that the learned Magistrate did not observe the provisions of Section 514 Cr. P.C. in forfeiting the bail bonds and in directing the petitioner to pay the amount. It was stated that the learned Magistrate has not recorded the grounds for the forfeiture showing the proof that the bonds were forfeited and that the order forfeiting the bonds was, therefore, irregular. I do not find any irregularity in the order.
In the case of a bond for appearance of the accused person before Court, the very fact that the accused person did not appear being known to the Court and to the surety, no further grounds for the proof of that fact are necessary and the bond can be straightway forfeited and there is nothing irregular in the Court doing so.
6. It was next stated that the show cause notice required under Section 514(1) Cr. P.C. was not given to the petitioner. But the record showed that in fact two such notices were given and on both occasions the petitioner appeared and filed petitions in Court. On the first occasion the bond had not been forfeited and the show cause notice appears to have been given even before the forfeiture. Then the petitioner prayed by a petition for one month's time to produce the accused persons,
But time was refused and the bonds were forfeited and he was again given a second show cause notice why he should not be called upon to pay the forfeited amount. To this notice, he did not show cause, but only pleaded by a petition for the mercy of the Court on account of his inability to produce the accused persons and he prayed that a nominal amount may be forfeited and that he may be excused from paying the balance. In the face of such a petition filed by the petitioner on receipt of the show cause notice, I fail to understand how the petitioner can say that he was not given an opportunity to show cause against the penalty.
7. Next it was pointed out that separate orders ought to have been made in respect of each bail bond and that a joint order cancelling the two security bonds in respect of two accused persons should not have been made and a joint show cause notice should not have been given. In support of that position, the decision Aunada Charan Chakraborty v. Emperor AIR 1943 Cal 251 was cited. That was a case of bonds under Section 107 Cr. P.C. and not bail bonds for appearance in Court.
There were six bonds by six separate persons and the bonds were not for appearance in Court but for keeping the peace and the grounds of proof of the forfeiture of the bonds had to be naturally separate in each case and the evidence in one case cannot be evidence in the other cases. Hence the Court remarked that all the cases should not be jumbled together as confusion was bound to result and it had to be established separately that each particular bond had been forfeited. But that is not the case here.
The bonds are for appearance in Court by the two accused in one and the same case and no further proof of the forfeiture of the bonds was necessary, as the fact of non-appearance was itself sufficient proof of the forfeiture. The surety also happened to be the same in both cases. Hence I cannot say that a joint order was bad and not executable, though it would have been no doubt, better if the Magistrate had passed separate orders in respect of each bond and issued separate notices to show cause.
8. Next it was pointed out to me that the surety bonds taken in this case from the petitioner did not comply with the provisions of Section 499 Cr. P.C. and that they were not therefore, enforceable against the petitioner. This objection appears to me to be a valid one and has to be accepted. Section 499 Cr. P.C. contemplates that in the case of bail bonds supported by sureties the accused person has to be released on bail on his own bond for such sum of money as the Court thinks sufficient and on bonds executed by one or more sufficient sureties.
It is clear from this that it is imperative that there should be a bond executed by the person who was to be released on bail and that the said bond should be supported by the bond of one or more sureties as the Court directs. In the present case it is seen from the records that the two accused persons Muchablbir Ali and Taleb Ali were not called upon to execute any bonds, but that they were released only on the surety bonds executed by the petitioner. It is clear therefore that the provisions of $. 499 Cr. P.C. were not complied with.
9. It was pointed out by the Government Advocate that the liability of the surety who gives a bail bond for the appearance of an accused person was quite distinct and saparate from the liability of the accused person and that even if no personal bond was taken from the accused, the liability of the surety would remain intact. It was also pointed out that even if there is any failure to comply with the provisions of Section 499 Cr. P.C. it was merely an irregularity which will not affect the liability of the surety. I am afraid, I cannot accept this reasoning.
It is well settled law that a surety bond in a criminal case has to be strictly construed. It has been held in the case Emperor v. Chintaram AIR 1936 Nag 243 by Mr. Vivian Bose that bail proceedings are special proceedings about which there are specific directions in the Code and they must be strictly followed. It has also been held by the Supreme Court m the State of Bihar v. M. Homi that the terms in a bail bond are penal in nature and must be very strictly construed.
10. It is clear therefore that if a bail bond is not strictly in accordance with the provisions in Section 499 Cr. P.C. it cannot be enforced against the person giving the bond, as the terms of the bond are penal in nature. Thus when Section 499 Cr. P.C. specifically enjoins that in the case of a bail bond, there must be a personal bond by the person to be released on bail and another bond to be given by the surety in cases where the Court directs that surety must also be given, the surety cannot be held liable where the Court has omitted to take a personal bond from the person to be released on bail.
This will be clear if we look to form No. XLII in schedule V, Cr. P.C. In the said form the bond to be executed by the person to be released on bail as well as the bond to be given by the surety are given jointly, thereby meaning that under Section 499 there must be both the bonds in case a surety is to be made liable by virtue of a bond executed under Section 499 Cr. P.C.
11. After all a surety is not the principal person liable. The very word surety implies that. Surety means a person who becomes bound for another. It means therefore, that the person for whom the surety gives bond must himself be bound in the first place. It is to secure this that Section 449 insists on a bond from the person to be released on bail. A reading of Section 499 further shows that the amount of money to be forfeited has to be given in the personal bond to be executed by the person to be released on bail and that the surety binds himself to forfeit the said sum of money to the Government i.e. the sum mentioned in the personal bond of the person to be released.
It again presupposes that there must be a personal bond. One can envisage a situation where the principal person bound to appear in a Court on a bail bond given by the surety alone may refuse to appear in Court when requested by the surety to do so on the plea that he has not executed any bond to the Court to appear in Court and hence he was not bound to do so and thus on the strength of that bail bond the surety alone becomes liable but not the principal. It is to avoid such situations that Section 499 has provided for both bonds, one by the principal person and the other by the surety. When- therefore this provision is not strictly complied with, I cannot hold the surety liable.
12. My attention was drawn for the petitioner to two decisions of the Orissa High Court, Govinda Chandra v. State and
Chamra Meher v. State of Orissa In both of which it has been held that a bond executed only by the sureties and not by the accused also is not a bond as contemplated by Section 499(I), Cri. P.C. and hence the provisions of Section 514 relating to the forfeiture of the bond will not apply. I am in respectful agreement with the two decisions. The earlier decision has discussed all the case law on the point before arriving at the decision.
13. It follows therefore that the surety bonds in the present case are not enforceable against the petitioner under Section 514 Cr. P.C. The order of the Magistrate forfeiting the bonds and directing the petitioner to pay the amount mentioned in the bail bonds as well as the order of the District Magistrate dismissing the appeal are set aside.
14. Before I part with this case it is necessary for me to mention that the records in this case disclose a practice on the part of the Magistrate, Dharmanagar, to insist on pleaders in his Court to stand surety for accused persons before they are released on bail. In the present case, I find that a pleader of the Court was made to stand surety for all the accused persons. This practice appears to me to be abhorrent and even liable to be abused.
There is no warrant under the Criminal Procedure Code for the Court to insist on particular persons to stand surety. Section 499 Cr. P.C. mentions only "sufficient" surety and does not give the power to the Court to insist on a particular surety. This will be borne in mind by the Criminal Courts. The Criminal Courts have also to see that the provisions of Section 499 Cr. P.C. are strictly followed in the case of bail bonds. A copy of this judgment will be sent to the District Magistrate for communication to all the Magistrates under him.