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Kshetrimayum Radha Singh Vs. Government of Manipur - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantKshetrimayum Radha Singh
RespondentGovernment of Manipur
Excerpt:
.....to be at churachandpur, but failed to do so. the failure of the accused to appear before the special judge will not cause forfeiture of the bond. it is clear that this provision cannot be satisfied unless and until the court before whom the appearance is to be made is expressly stated in the bond. emperor air 1934 cal 101, it was held that there is no breach of the conditions of the bail bond, if the surety has failed to produce the accused in one court and the case is transferred to another, unless from the language used in the bond, the surety has bound himself to be liable even on such transfer and that when bond ceases to exist, it does not revive, even if the case is retransferred to the former court. it was held that where a security bond is given for attendance and..........sureties in the like amount each to his satisfaction. the applicant and one kh. chaoba singh filed surety bonds and on the execution of those bonds the accused was released on bail. the surety bond executed by the petitioner runs as follows:i, sri kshetrimayum radha singh, s/o late ram singh of khwai naga mopel, do hereby stand surety for the accused sri kh. chaoba singh, arrested in connection with f.i.r. no. 71 (9) 61 of c.c.p.s. and that he will attend the court as and when directed by the court and in case of his making default in attendance, i bind myself to forfeit a sum of rs. 2,000 (rupees two thousand) to the government.this day of 21st november, 1961.signature of bailor.thereafter the accused went on appearing in the court of s.d.m., churachandpur on the dates fixed for.....
Judgment:

Rajvi Roop Singh, C.J.

1. This is a Criminal Revision Cast filed against the order made by the learned Special Judge, Manipur in Criminal Misc. Case No. 134/1 of 1963.

2. The facts are: The accused Kbundrakpam Chaoba Singh was a bill clerk in the Office of the Development Commissioner at Churachandpur. It is alleged that he misappropriated a sum of Rs. 10,000/- by forging three bills. Thereupon, the matter was reported to the Officer In charge P.S. Churachandpur and he registered a case under Section 409 I.P.C. against the accused. The Police after preliminary investigation arrested the accused on 15th September, 1861 and produced him before the S.D.M., Churachandpur. An application was then moved for bail. On 14.11.1961, the learned S.D.M. passed air order that the accused be released on ball on his furnishing a personal ball bond in the sum of Rs. 2,000/- and two sureties In the like amount each to his satisfaction. The applicant and one Kh. Chaoba Singh filed surety bonds and on the execution of those bonds the accused was released on bail. The surety bond executed by the petitioner runs as follows:

I, Sri Kshetrimayum Radha Singh, s/o late Ram Singh of Khwai Naga Mopel, do hereby stand surety for the accused Sri Kh. Chaoba Singh, arrested in connection with F.I.R. No. 71 (9) 61 of C.C.P.S. and that he will attend the Court as and when directed by the Court and in case of his making default in attendance, I bind myself to forfeit a sum of Rs. 2,000 (Rupees two thousand) to the Government.

This day of 21st November, 1961.

Signature of bailor.

Thereafter the accused went on appearing in the Court of S.D.M., Churachandpur on the dates fixed for hearing. In this ease, the Initial investigation was done by the S.H.O.P.S. Churachandpur and thereafter it was taken up by the Deputy B.P. in charge, Churachandpur Circle. During the investigation the Deputy S.P. came to know that there were 3 separate transactions and not one as alleged previously, therefore, he split them Into 8 cases and after completion of the Investigation on 16.10.1963, put up charge sheets in all the 3 cases against the accused under Sections 409 I.P.C. and 5(2) of the Prevention of Corruption Act, 1947, to the Court of Special Judge, Manipur. On 16.10.1963, the accused did not appear before the Court of Special Judge, therefore, he cancelled the bail and issued non-bailable warrant for the arrest and production of the accused before the Court on 23.11.1963. The Special Judge also ordered for registering a separate Cril. Misc. Case and issue of notice to the accused as well as to the sureties to show cause on 23.11.1863 as to why the bail bond amount be not realised from them. Therefore, notices were issued under Section 514 Cr.P.C. and the sureties appeared and contended that by reason of transfer of the case they were not bound to produce the accused and the bond should not be forfeited.

3. They took time, however to produce the accused who was stated to be at Churachandpur, but failed to do so. Therefore, the learned Special Judge proceeded with his proceedings under Section 514 Cr.P.C. and forfeited the bond. Against this order only the petitioner K. Radha Singh has come to this Court and has raised several points of law.

4. Firstly, It has been contended that proper proceedings as required under Section 514 Cr.P.C. have not been taken. It was said that there was no order of forfeiture of the bonds nor a proper notice has been served upon the applicants to pay the penalty thereof or to show cause why it should not be paid. Secondly, it was urged that the terms of the surety bonds never contemplated the production of the accused before the Special Sessions Judge and the surety bonds must be enforced strictly according to the terms of the bonds. It is in the nature of a contract, and nobody can go out of the contract and enforce something which is not in the bond but it may be in contemplation of the parties. Reliance was placed by the learned Counsel on the observations of their Lordships of the Supreme Court in State of Bihar v. M. Homi (S) : 1955CriLJ1017 wherein it was held that:

In view of the clear provision in the bond the terms of which being penal in nature must be very strictly construed, it could not be said that the contingencies contemplated by the parties had occurred.

In that case the bond was executed for the production of the accused before the hearing of the appeal in Privy Council but later on the case was transferred to the Federal Court by virtue of the Abolition of the Privy Council Jurisdiction Act. Thus, the accused's appeal was got transferred to the Federal Court and in due course ultimately was heard by the Supreme Court. As there was no judgment or order of the Judicial Committee upholding either in part or in whole the sentence against the accused, it was held that it did not come within the strict meaning of the bond.

5. Reliance was also placed on Emperor v. Chintaram AIR 1936 Nag 243, judgment of Mr. Justice Vivan Bose, wherein his Lordship held that:

Where there is no mention in the surety bond of the Court in which the accused is to appear, the bond cannot be enforced. The fact that the surety did not produce the accused in a totally different Court, even supposing he had undertaken to produce him in a particular Court, is not a breach of the bond and the surety is not liable. The terms of a surety bond have to be determined by the language used in the bond itself.

What the surety thought or did not think is immaterial, and it is not for a surety to show that the bond is illegal but for the State to show that the document it wishes to enforce against him is one which can be so enforced under the law.

6. The learned Government Advocate appearing on behalf of the State frankly conceded that in this case the surety bond was for the attendance of the accused in the Court of S.D.M., therefore the liability of the surety came to an end when the case was transferred to the Court of Special Judge, Manipur. The failure of the accused to appear before the Special Judge will not cause forfeiture of the bond.

7. I feel that the learned Government Advocate has conceded rightly. Bail proceedings are special proceedings about which there are specific directions In the Code and they must be strictly followed. Section 499 Cr.P.C. states that the time and place at which the accused is to appear must be mentioned in the bond, and the second clause of that section states that if the accused is to appear in some other Court, the bond must expressly say so. It is not open to Courts to depart from these express provisions.

8. Section 514 Cr.P.C. also indicates that the place of appearance must be expressly stated in the bond. It deals with two petitions (positions?) The first is when a bond is taken by a Court for appearance, not before a Court, but elsewhere. In that case certain Courts alone have Jurisdiction to determine whether the bond has been forfeited. The second is where the bond is for appearance before a Court, and in that case only the Court before whom appearance is to be made can determine whether the bond has been forfeited or not. It is clear that this provision cannot be satisfied unless and until the Court before whom the appearance is to be made is expressly stated In the bond.

9. In this case the surety has bound himself to produce the accused before the S.D.M., Churacbandpur on 2.12.1961 and shall continue to produce him until otherwise directed by the Court. Therefore, the question is, do the terms of this bond cover a case of production of the accused after the case had been transferred to Special Judge's Court, Manipur?

10. The point taken Is covered by authority: in Hem Lal Ganguly v. Emperor air 1934 Cal 101, it was held that there is no breach of the conditions of the bail bond, if the surety has failed to produce the accused in one Court and the case is transferred to another, unless from the language used in the bond, the surety has bound himself to be liable even on such transfer and that when bond ceases to exist, it does not revive, even if the case is retransferred to the former Court.

11. In Bhoop Singh v. State of Madhya Bharat 1954 Cri. LJ 334 : AIR 1954 Madh B.S. it was held that where a security bond is given for attendance and production of the accused in a particular Court only, the liability of the surety comes to an end, when the case is transferred to another Court and that In such a case the bond cannot be forfeited for failure of the accused to appear before transferee Court.

Beaumont, C.J.

In a Division Bench case reported in Ballabhdas Motiram v. Emperor AIR 1943 Bom 178 has taken a similar view. In Lokenath v. Abaninath AIR 1934 Cal 102, the same view has been followed as expressed In Nagpur and Bombay cases referred to above.

12. The net result of this analysis is that when a bond if given for attendance in a particular Court, the liability of the surety comes to an end when the case Is transferred to another Court.

13. Therefore, the order of the learned special Judge cannot be upheld and it must be set aside. The present revision is allowed and the order of the Special Judge forfeiting the bond is set aside. If the penalty had been realised, it should be refunded to the surety.


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