1. The question which arises in this revision application is whether a bond executed by sureties alone can be forfeited even though the accused who has been released on bail has himself not executed a bond as contemplated by Section 499 (1) of the Code of Criminal Procedure. The question arises on the following facts.
2. Proceedings under Section 109 of the Code of Criminal Procedure were started against one Arjun son of Lala in the Court of the Sub-Divisional Magistrate, Ramtek. Arjun, who was in custody had applied to the Magistrate that he should be released on his personal bond. This application was rejected. Thereafter, on 10-8-1971 the present applicant filed an application accompanied by an affidavit that he was willing to stand surety for Arjun and that Arjun should be released on bail. The proceedings before the Sub-Divisional Magistrate show that the Magistrate had passed an order accepting the bail bond executed by the present applicant. The order-sheet itself does not disclose as to what was the amount for which the bond was to be executed but there is on record a bond in Marathi in accordance with Form XL1I of Schedule V to the Code of Criminal Procedure. Though the form has been filled in the name of Arjun and the printed matter in the form contains an undertaking that he would attend the Court whenever he is required to do so and that if he failed to attend, he shall forfeit an amount of Rupees 500/- to the State, no care has been taken to see that Arjun signed this undertaking or the bond. On the reverse of this form the present applicant, Mahadeo, has put his signature in token of his having executed the bond undertaking to see that the person released on bail would be present in Court whenever required to do so and that if he failed to attend, the applicant would forfeit the amount of Rs. 500/-. It was this bond executed by the present applicant that was accepted by the Sub-Divisional Magistrate by his order dated 10-8-1971. It is unfortunate that the Magistrate himself did not apply his mind to the question of acceptance of the bond, nor has he taken care to see whether the bond has been properly executed or not, nor has he specified the amount of the bond in his order. It is this slovenly dealing with the matter that has created difficulties in the way of the State in the enforcement of the bond which could have been easily avoided if the Magistrate had been a little careful. It appears that Arjun was present in Court on 23-8-1971 and requested time for filing a statement. The case was adjourned to 10-9-1971 when Arjun remained absent, and in spite of repeated adjournments and issuing of a nonbailable warrant of arrest his presence could not be secured. Notice was, therefore, issued to the present applicant and when he failed to produce Arjun, the Sub-Divisional Magistrate passed an order on 16-8-1972 forfeiting the security of Rs. 500/- and directed that recovery proceedings should be started against the applicant surety. The applicant filed an appeal against the order of the Sub-Divisional Magistrate to the Additional District Magistrate, Nagpur, before whom it was urged, that the surety bond was not enforceable because Arjun himself had not executed any bond, and an alternative prayer was made that a part of the amount to be forfeited should be remitted. The learned Additional District Magistrate took a lenient view of the matter and modified the order of the Sub-Divisional Magistrate by reducing the amount to be forfeited to Rs. 300/-. The applicant has now filed this revision application against that order.
3. The main contention which is raised on behalf of the applicant is that the surety bond executed by the applicant is unenforceable because Arjun had himself not executed the bond and the entire proceedings for forfeiture of the bond were without jurisdiction. There is a divergence of judicial opinion on the question whether the liability of the surety on the basis of a surety bond executed by him in order to secure the release of a person on bail can be enforced if the accused or the person released on bail himself has not executed a bond. The learned Counsel on behalf of the applicant relied on certain observations of the Supreme Court in Bekaru Singh v. State of Utter Pradesh : 1SCR55 in support of his contention, as also the decision of the Patna, Orissa and Calcutta High Courts. A view contrary to the one which is canvassed on behalf of the applicant has been taken by the Allahabad and Madras High Courts, as also the Madhya Pradesh High Court. Mr. Mor, learned Assistant Government Pleader, relied on the decisions of these Courts and contends that notwithstanding the fact that Arjun himself has not signed the bond the obligation of the surety arises in an independent manner on the basis of the bond executed by him and could, therefore, be independently enforced. Before I notice the decisions taking the two opposite views, it is necessary to refer to certain provisions of the Code of Criminal Procedure. Section 499 of the Code reads as follows:
499 (1) 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.
(2) * * * *
(3) For the purpose of determining whether the sureties are sufficient, the Court may. if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further inquiry as it deems necessary.
Section 500 provides that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released, and when such person is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him. I may refer to the provisions of Section 514-B which provide that when the person required by any Court or officer to execute a bond, is a minor, such Court or officer may accept, in lieu thereof a bond executed by a surety or sureties only. It is necessary to refer to the form of the bond which is prescribed in Form XLII in Schedule V to the Code. The form, in so far as the requirements of the present case are concerned, excluding the unnecessary words, will read as follows:
I ... being brought before the Magistrate ... and required to give security for my attendance in his Court ... do bind myself to attend at the Court of the said Magistrate on every day of the preliminary inquiry into the said charge ... and in case of my making default herein, I bound myself to forfeit to Government ... the sum of Rs. 500/-.
So far as the surety is concerned, the form of the surety bond will read as follows:
I hereby declare myself surety for the said Arjun that he shall attend at the Court of the Sub-Divisional Magistrate, Ramtek, on every day of the preliminary inquiry into the offence charged against him and ... in case of his making default therein, I bind myself to forfeit to Government the sum of Rs. 500/-.
4. Now, under Section 499 of the Code a person in custody can be released on his own bond in which case the execution of the bond by him alone is sufficient to secure his release. We are not concerned with that kind of case here. The question is: what are the requirements of Section 499 of the Code when a person is released on bail, which means that a person is released only on condition that either one or more persons stand surety for his appearance. It may be stated at this stage that Section 499 (1) itself does not make any reference to the liability of the surety for forfeiture of the amount fixed by the Court for which the bond is to be executed. But it appears to be clear from the words of Section 499 that the person who is released on bail has to execute a bond for such sum of money as is fixed by the Court and further a bond is also to be executed by one or more sureties. The bond executed by the surety is to be conditioned that the person released on bail 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 the Court, as the case may be. The words of the bond 'for such sum of money as the police officer or Court ... thinks sufficient shall be executed by such person' are spoken of in respect of the person who is either released on bail or is released on his own bond. The clause 'and, when he is released on bail, by one or more sufficient sureties' is not to be read disjunctively but is an additional requirement which is to be complied with in the case where the person is released on bail. The latter part of the section containing the words 'conditioned that such person shall attend at the time and place mentioned in the bond' refer to the required recitals in the bond itself. The words of Section 499 (1) therefore, leave no room for doubt that before a person is released on bail, the said person also must execute the bond and so also the surety and sureties. There is indication in the Code itself that only in certain specified cases a person can be released on bail without his executing a bond. This is to be found in Section 514-B. Under Section 514-B it is permissible for the Court to accept a bond executed by a surely or sureties only where the person who is required to execute a bond is a minor. In view of the provisions of Section 514-B, it must, therefore, follow that in all other cases where a person is required to execute a bond the provisions of Section 499 (1) must be strictly complied with, and before a person is discharged from custody having been ordered to be released on bail not only should the sureties execute the bond but the person to be released on bail must also execute the bond.
5. The terms of the bail bond as contained in Form XLII of Schedule V show that the person to be released on bail binds himself to attend the Court when his presence is required in the Court. On failure to present himself before the Court when he is so required he further binds himself to forfeit to the Government the specified amount. The latter part of the form dealing with the surety, read in the light of the provisions of Section 499 (1) of the Code, clearly indicates that the surety is a surety for the performance of the obligation of attending the Court which the person had bound himself to perform. The concept of surety itself contemplates that there is to be a principal obligor who is bound to perform a certain obligation which, if not performed by him, the surety undertakes to perform. Unless, therefore, the State is able to show that before a person is released on bail he had bound himself by an undertaking to attend the Court whenever required and to pay the penalty for breach of that undertaking, the occasion for enforcing the obligation of the surety to pay the penalty for the failure of that person to appear and consequently to pay the penalty cannot arise. Indeed the effect appears to be that if the person to be released on bail does not execute the bond, there cannot be any obligation in respect of which the surety can be required to stand as a surety, and this legal position does not come to be affected merely because the surety has put his signature to the printed bond. The question essentially is one of legal relationship between the State and the surety as one governed by a contract which would enable the state to enforce the contract of surety in case the contingency in respect of which the contract has been entered into takes place. Unless, therefore there was originally as contract or an obligation in the performance of which the State could have obliged the presence of the person or in default, could have enforced the penalty clause against the person, the further occasion for enforcing the penalty clause against the surety on the ground that the principal obligor has himself failed to perform his part of the obligation does not arise. It is no doubt true that the matter relating to the grant of bail is governed by the provisions of the Code of Criminal Procedure, but that does not rule out the nature of the legal relationship between the State and the person to be released on the one hand and the State and the surety on the other, which must on the terms of the surety bond itself be governed by nothing more than the general principles relating to the enforcement of a contractual liability. It appears to me, therefore, that placing a strict construction on the penal provisions relating to the forfeiture of a surety bond and the terms of the bail bond in Form XLII of Schedule V. it is not permissible for the State to enforce the surety bond alone if for any reason whatsoever the person to be released on the bond has himself failed to execute it.
6. In : 1SCR55 while construing the provisions of Section 499 (1) of the Code of Criminal Procedure the Supreme Court observed in paragraph 9 that before a person is released on bail a bond must be executed by such person and bonds be also executed by sureties for the attendance of that person in Court. I am also supported in the view which I have taken by the decisions of the Palna, Orissa and Calcutta High Courts. In Baidyanath Misra v. Emperor : AIR1947Pat58 it has been observed that the provisions of Section 499 as to the nature and contents of the bonds are imperative and it is incumbent under the section to get a bond executed by the person released on bail and in the absence of such a bond there can be no valid bond by the surety alone and a bond by the surety alone is not contemplated by the Code and there is no power in the Code to forfeit such a bond. The learned Judge who decided that case followed an earlier decision of the Allahabad High Court in Brahmanand Misra v. Emperor : AIR1939All682 in which it was pointed out that the provisions laid down in Section 499 as to the nature and contents of bonds are imperative and must be strictly fulfilled. In that case it was further observed that when a person is released on bail he must himself execute a bond, and that the law does not contemplate any person being released on bail without executing a bond himself merely upon an undertaking or security given by a surety. Dealing with the provision of Section 499 it was further observed that:
it is incumbent under Section 499, Criminal Procedure Code, to get a bond executed by the person who is released on bail and unless that is done there can be no valid bond by a surety alone.
7. In Govinda Chandra v. State : AIR1951Ori18 Ray, C. J., pointed out that any surety bond executed without the bond by the accused is not a bail bond within the Code and is not enforceable in the manner prescribed in the Code and where the accused has not been made to execute a bond, the only control on the accused is non-existent and the foundation of the security is knocked from its bottom. I may usefully refer to the following observation made by the learned Chief Justice in paragraph 7 of the judgment:
If the accused has not been released on bail, and has not undertaken to appear on pain of forfeiture of a bond for a certain amount, the consideration for the surety bond fails and the surety's liability is enlarged or subjected to greater risk than he shall be considered to have undertaken under the provisions of Section 499 without his consent. The surety's bond, therefore, becomes unenforceable. The legislature has deliberately used the word 'surety' indicating that his liability is secondary.
Earlier the learned Chief Justice had observed:
As it appears from Criminal Procedure Code Schedule V, Form No. XIII, there Should be two bonds, one taken from the accused undertaking to appear on the dates of hearing on pain of forfeiting the bond of any amount fixed by the Court, and the other from the surety chosen by him (accused) undertaking, on accused's failure, to make good the sum forfeited by the accused and, for the matter of that, by him. I cannot conceive that without an accused himself executing a bond, any surety could be thought of. The very conception behind the word 'surety' and the liability implied in that status as recognised by law is to reimburse the loss sustained by the principal on account of failure of performance on the part of the obligor. The principal (i.e., the State in this case) has double remedy one against the principal obligor and the other against his surety. Not taking a bond from the accused person to appear on the dates fixed amounts to leaving him to act at his own option. If the accused is not bound to appear, there is no meaning requiring the surety to make him appear.
The paragraph quoted above no doubt refers to Form No. XIII of Schedule V which refers to Section 123 of the Code but the reference to Form No. XIII in the context of the provisions of Section 499 appears to be mistaken. Later in the same Court, this decision of the learned Chief Justice was affirmed by a Division Bench consisting of himself and Narasinham, J., in Chamra Meher v. State of Orissa : AIR1951Ori179 .
8. The Calcutta High Court has taken the same view in Sailesh Chandra v. State : AIR1963Cal309 in which a Division Bench of that Court held that the bond executed by the surety alone was not the bond within the terms of the Code of Criminal Procedure and, therefore, it could not legally be forfeited under Section 514.
9. Shri Mor, learned Counsel appearing on behalf of the State, has mainly relied on the view taken by the Allahabad High Court which has been followed by the Madras High Court for the proposition that the liability of the surety is entirely independent of the liability of the person released on bail. In Nisar Ahmad v. Emperor : AIR1945All389 it was held that when an accused person has been released on bail merely on the undertaking of the surety and the bond is executed by the surety alone without the accused having been required to execute a personal bond, that fact in no way affects the liability of the surety who had undertaken to produce the accused before the Court on the date or dates mentioned in that bond. This decision was later followed by a Division Bench of the same Court in Emperor v. Abdul Aziz : AIR1946All116 . One of the reasons given by the Division Bench for following the view taken in Nisar Ahmad's case was that the terms of Section 499 of the Code and the form of the bail and security bond given in the Schedule showed that the surety does not guarantee the payment of any sum of money by the person accused who is released, on bail but guarantees only the attendance of that person. With respect it is not possible for me to agree with the view which the Allahabad High Court has taken on the construction of Section 499 read with the form of the bond in Schedule V of the Code. Though it may not be possible to dispute that so far as the enforcement of the penal clause in the bond is concerned, an independent liability is created, by the surety against him, on the very terms of Section 499 and the form of the bonds, the penalty clause in the bond can come into being and become enforceable only if the obligation for the failure to perform which the penalty has been prescribed has not been performed. The liability of the surety could be said to be independent inasmuch as the penalty amount of the bond could be recovered from the surety without taking the steps for the recovery thereof from the person who was released on bail. But that does not seem to be the sense in which the Allahabad High Court has construed the liability of the surety to be independent. So far as the occassion for enforcing the penal liability independently is concerned, the occassion cannot arise unless the principal obligor has failed to perform the obligation the performance of which was guaranteed. The Allahabad view has become the basis of the decision in In re K. Sivaswami AIR 1962 Mad 340 : 1962 (2) Cri LJ 377. For the reasons set out above. I must respectfully differ from the view of the Madras High Court also.
10. I may, however, point out that in Nisar Ahmad's case : AIR1945All389 (cit sup.) the question whether a bond executed by the surety alone could be enforceable did not directly arise and was not material for the purposes of the decision of that case. The learned Judge has made it clear that he was bound by the decision in Brahmanand Misra's case : AIR1939All682 (cit. sup.), and if it was not in favour of the applicant on other points, he would have referred the matter to a larger Bench.
11. There is then the decision of the Patna High Court in Keshav v. State in which the decision in : AIR1939All682 and : AIR1951Ori18 have been dissented from. The Division Bench of the Patna High Court therein pointed out that if a bond is not taken from the accused himself but only from a surety and the accused is released on bail, that would be an irregularity but would not make the bond executed by the surety invalid. This decision is almost wholly based on the same reasoning which appealed to the Allahabad High Court, and for the reasons already stated I would prefer to accept the view in : AIR1939All682 (cit. sup.) and : AIR1951Ori18 (cit. sup.).
12. Mr. Mor also relied on a decision of the Madhya Pradesh High Court in Nageshwar v. State of M. P. 1972 MPLJ 264. The learned Judge in that case has merely noticed the conflict of judicial opinion and has chosen to follow the Allahabad and Madras view. No discussion, however, appears in the judgment.
13. In the view which I have taken it must, therefore, be held that since the Magistrate had failed to get a bond executed from the accused, the bond executed by the surety could not be enforced and the order of forfeiture must, therefore, be quashed. The orders of the Sub-Divisional Magistrate, Ramtek, and the Additional District Magistrate, Nagpur, are therefore, set aside and the forfeiture proceedings taken against the applicant are quashed. If any amount of the bond has been recovered, the same shall be refunded to the applicant.