Iqbal Ahmad, C.J.
1. The question of law that arises in the present reference by the Sessions Judge of Fatehpur relates to the extent of the liability of a surety under what may be styled as the security sections in chap. 8, Criminal P.C. These sections are five in number. Section 106 makes provision for security for keeping the peace being demanded from an accused person on his conviction and Section 107 provides about a person being called upon to show cause why he should not be ordered to furnish security for keeping the peace in cases outside the scope of Section 106. Sections 108, 109 and 110 specify the circumstances in which a person may be called upon to show cause why he should not be ordered to furnish 'security for good behaviour.' Sections 112 to 119 of the Code enact the procedure that has to be followed in cases falling within the purview of Sections 107 to No. While it is a feature common to all the five sections that the person proceeded against is either ordered or is called upon to show cause why he should not be ordered to execute a bond 'for keeping the peace' or 'for his good behaviour,' as the case may be, option is given by Sections 106,107 and 108 to the Courts concerned either to demand or not to demand sureties with respect to the bond to be eventually executed by the person concerned. Sections 109 and 110, on the other hand, give no such option and, if a person proceeded with under either of those sections is eventually bound over, he has to furnish sureties.
2. It is not and cannot be disputed that, if the person bound over under any of the five sections violates the terms of the bond executed by him, the bond stands forfeited and he is liable to pay the penalty specified in the bond or, in other words, to pay the amount mentioned in the bond executed by him, and the procedure for the realization of such penalty is prescribed by Section 514 of the Code. There is, however, divergence of judicial opinion on the question as to whether the liability of the sureties in such cases is only co-extensive with that of the person bound over or is a separate and independent liability enforceable against them, even though the penalty agreed to be paid by the person bound over is realized. So far back as in the year 1890 the Punjab Chief Court held that only one bond should be taken from the accused and his sureties for one determinate amount, the sureties engaging to be bound jointly and severally for the same amount as the accused, so that it may be realizable from any one of the obligors, and that it is not permissible to take separate bonds from the accused and his sureties individually and severally exceeding in the aggregate the amount for which the accused is liable : vide Jawaiya v. Empress ('90) 30 P.R. Cr. 1890. The same view was reiterated by the same Court four years later and it was held in Kaku v. Empress ('94) 26 P.R. Cr. 1894 that the bond executed by the principal and the bond executed by the surety are to be considered as one bond for one amount, and is discharged on forfeiture by the payment of the amount due by either the principal or the surety. To the same effect is the decision of the same Court reported in Ali Mohammad v. Emperor ('11) 11 I.C. 588 and of the Lahore High Court in Emperor v. Abdul Aziz ('24) 11 A.I.R. 1924 Lah. 262. The Lahore High Court in Harnam v. Emperor ('25) 12 A.I.R. 1925 Lah. 228, adopted the same view. These cases are authorities for the proposition that a bond executed under the security sections is for one amount and is discharged on forfeiture by the payment of that amount either by the principal or the surety. All these five cases of Punjab are single Judge cases and were considered by a Bench of two Judges of that Court in Sardar Khan v. Emperor ('37) 24 A.I.R. 1937 Lah. 133 and were disapproved. It was held by the Division Bench that a surety is 'liable to pay the amount specified in the bond in addition to any amount that might be re-covered from the principal.' The question was again considered by a single Judge of the same Court in Chanda Singh v. Emperor ('40) 27 A.I.R. 1940 Lah. 32 who following the decision in Emperor v. Abdul Aziz ('24) 11 A.I.R. 1924 Lah. 262 held that
where the accused and his surety have executed bonds for keeping the peace, in the first place it is the principal bond which should be forfeited and it is only where that cannot be realized that the-surety is liable to pay.
The decision of the Division Bench in Sardar Khan v. Emperor ('37) 24 A.I.R. 1937 Lah. 133 was, however, not brought to the notice of the learned Judge and, as his decision runs counter to the decision in Sardar Khan v. Emperor ('37) 24 A.I.R. 1937 Lah. 133, it is not of binding authority so far as the Lahore High Court is concerned.
3. The view that the liability of the surety is co-extensive with that of the person bound over and that such person and the sureties are jointly and severally liable for the sum named in the bond was adopted in the Court of Judicial Commissioner, Upper Burma, in King-Emperor v. Nga Kaung ('5) 2 Cri.L.J. 463, as also by the Oudh Chief Court in Abdul Sattar v. Emperor ('38) 25 A.I.R. 1938 Oudh 195. In the last mentioned case it was held that 'the liabilities of the sureties under the Code of Criminal Procedure are not different from; those of sureties under the civil law.' The Calcutta High Court, on the other hand in Saligram Singh v. Emperor ('09) 36 Cal. 562, held that
upon the forfeiture of a bond by a person to keep-the peace...the surety is liable to pay the amount specified in his bond in addition to the penalty paid by the principal.
This Calcutta decision in Saligram Singh v. Emperor ('09) 36 Cal. 562 was followed by the Lahore High Court in 17 Lah. 5236 referred to above. The Sind Judicial Commissioner's Court in Jeomal v. Emperor ('26) 13 A.I.R. 1926 Sind 180 and Abdul Karim v. Emperor ('33) 20 A.I.R. 1933 Sind 320, and the Peshawar Judicial Commissioner's Court in Miram Shah v. Emperor ('36) 23 A.I.R. 1936 Pesh. 141, took the same view as was taken by the Calcutta High Court in Saligram Singh v. Emperor ('09) 36 Cal. 562. It would thus appear that the weight of authority is in favour of the view that the sureties under the security sections do not take responsibility for payment of the amount forfeited by the person bound over in the event of the latter failing to pay the same, but themselves incur an independent liability to pay the amount agreed to be paid by them in the event of the person bound over committing a breach'of the peace or being guilty of misbehaviour. This view is in consonance with the decision of this Court in Queen-Empress v. Rahim Bakhsh ('98) 20 All. 206 in which it was held that
the object of requiring security to be of good behaviour is, not to obtain money for the Crown by the forfeiture of recognizances, but to insure that the particular accused person shall be of good behaviour for the time mentioned in the order.
4. The answer to the question under consideration should, I venture to think, be sought for by reference to the provisions contained in the Code of Criminal Procedure and not by an appeal to the provisions relating to contracts of guarantee and surety's liability to be found in chap. 8, Contract Act. The object of Sections 106 to 110 of the Code is to prevent commission of crimes by persons who are a danger to the public and the bonds under those sections, whether with or without sureties, are, for obvious reasons, taken to insure the accomplishment of that object and not primarily with a view to bring into existence engagements or contracts involving a pecuniary liability. A 'contract of guarantee' is defined by Section 126, Contract Act, as
a contract to perform the promise, or discharge the liability, of a third person in case of his default.
This definition is, to my mind, wholly inapplicable to bonds given by sureties under chap. 8, Criminal P.C. The person bound over under that chapter undertakes to keep the peace or to be of good behaviour. It is manifest that this promise given by the person bound over is capable of performance by him and him alone. In the event of the non-performance of such a promise by him the sureties cannot obviously perform that promise. That portion of Section 126, Contract Act, which defines a contract of guarantee as meaning 'a contract to perform the promise...of a third person in case of his default' is, therefore, wholly inapplicable to bonds taken under the Code. Further, to a contract of guarantee there must be three parties, viz. a creditor, a principal debtor and a surety. It would, in the case of a bond under chap. 8 of the Code, be, to my mind, inappropriate to style the Crown as the creditor and the person bound over as the principal debtor. The reason for this is not far to seek. There is no amount advanced by the Crown to the person bound over and, therefore, the relationship of creditor and debtor does not come into existence at all. Further, according to the law of contract, a principal debtor need not necessarily be a party to a contract of guarantee and a person may without the principal debtor asking him to enter into such a contract, and without his knowledge, enter into such a contract, This, as will presently appear, can never happen in the case of a bond with sureties under chap. 8 of the Code. Apart from all this the Code of Criminal Procedure is, I take it, a complete Code by itself and enacts detailed provisions not only as regards the procedure to be followed in proceedings under Sections 106 to no, but also as regards the procedure to be observed for the realization of the penalty stipulated for on the forfeiture of a bond. That being so there can, in my judgment, be no warrant to let the interpretation of the relevant sections of that Code be influenced or coloured by reference to the highly technical and at times artificial rules relating to civil liability enforceable under an ordinary contract of guarantee.
5. The provisions contained in the Code do, to my mind, show that the sureties, by their bond, guarantee that the person bound over will keep the peace or be of good behaviour and, in the event of his failure to do so, they will pay the penalty stipulated for by them. In other words, the bond of sureties is not for payment of the amount of the bond executed by the person bound over but is a guarantee by them that the person bound over will perform the primary promise contained in his bond to keep the peace or to be of good behaviour and, in the event of a breach of that guarantee, the sureties themselves stipulate to pay the penalty specified in the bond. The words used in Sections 106 to no are plain and simple and, in my judgment, are open to this interpretation and this interpretation alone. By Section 106 the Court is authorized to order a convicted person 'to execute a bond...with or without sureties, for keeping the peace....' By Section 107 the person proceeded against is called upon 'to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace....' By Section 108 he is called upon 'to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour.' Under Sections 109 and no the person referred to in those sections is called upon 'to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour....' These quotations do, in my opinion, clearly indicate that the surety stipulates not for the payment of the amount specified in the bond executed by the person bound over but guarantees the performance of the promise by such person to keep the peace or to be of good behaviour, as the case may be. In short, the surety undertakes a contractual liability not for the payment of the amount of the bond executed by the per-son bound over but for the performance of the promise by him to keep the peace or to be of good behaviour and stipulates himself to pay a determinate amount on the breach of that promise. That this is so is apparent by Forms 10 and 11 in Schedule 5 of the Code. Section 555 of the Code enacts that.the forms set forth in Schedule 5, 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.
In view of this provision the forms must be regarded a part of the Code and the various sections Of that Code should, in my opinion, be so construed as to harmonize and not to come into conflict with the forms. Form 10 is the form of a bond to keep the peace by a person bound over under Section 107 when he is not ordered to furnish sureties. It runs as follows:.I hereby bind myself not to commit a breach of the peace...and in case of my making default therein, I hereby bind myself to forfeit...the sum of rupees.
6. Form 11 is a bond for good behaviour to be used in cases under Sections 108,109 and 110. It is as follows:.I hereby bind myself to be of good behaviour to Her Majesty and to all Her subjects...; and in case of my malting default therein, I bind myself to forfeit to Her Majesty the sum of rupees
Dated this day of 18(Signature.)(Where a bond with sureties is to be executed, add)-
We do hereby declare ourselves sureties for the abovenamed that he will be of good behaviour to Her Majesty the Queen, Empress of India, and to all Her subjects during the said term (or until the completion of the said enquiry); and, in case of his making default therein, we bind ourselves, jointly and severally, to forfeit to Her Majesty the sum of rupees.Dated this day of 18(Signature.)
7. Form 11 clearly shows that the bond given by the sureties is not with respect to the amount of the bond given by the person bound over but the sureties themselves, jointly and severally, enter into an engagement to pay a specified amount in the event of the person bound over failing to keep the peace or to be of good behaviour. It is true that in Form 10 a sample of the bond to be executed by the sureties in a case under Section 107 is not given, but in view of the provisions of Section 555 the sample of the bond meant for sureties in accordance with Form 11 has to be used in the case of a person who is bound over under Section 107 'with such variation as. the circumstances of each case require.' The liability of a surety must, for obvious reasons, be regulated by the terms of the agreement into which he enters. It follows that the extent of the liability of a surety under the security sections must be governed by the terms of the bond signed by him. As by the bond in Form 11 the surety guarantees the good behaviour of the person bound over, he, in my opinion, does incur an independent and separate liability in the event of the breach of that guarantee. Even if one were to import into the interpretation of the relevant sections of the Code principles of civil law relating to the extent of a surety's liability, the conclusion must be the same. It is not an invariable rule of civil law that the liability of a surety is co-extensive with that of the principal debtor. On the other hand, it is provided by Section 128, Contract Act, that 'the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.' Far from countenancing the proposition that the surety's liability is co-extensive with that of the person bound over, Form 11 does cast an independent and separate liability on the surety. That a surety under the security sections guarantees not the payment of the amount of the bond entered into by the person bound over but guarantees his good behaviour is, in my judgment, put beyond doubt by Form No. 46, in Schedule 5 of the Code which runs as follows:
Whereas on dayof 18you became surety by a bond for (name) of (place) that he would be of good behaviour for the period of and bound yourself in default thereof to forfeit the sum of rupees to Her Majesty the Queen, Empress of India; and whereas the said (name) has been convicted of the offence of (mention the offence concisely) committed since you became such surety, whereby your security bond has become forfeited;
You are hereby required to pay the said penalty of rupees or to show cause within days why it should not be paid.
8. An examination of the other relevant provisions of the Code points to the same conclusion. A Magistrate is required by Section 112 to set forth in the order requiring any person to show cause under the security sections 'the number, character and class of sureties (if any) required.' If the sureties were responsible only for the payment of the amount of the bond executed by the person bound over, the only relevant consideration would be their pecuniary status and not their 'character or class.' By virtue of Section 112, a Magistrate is, however, authorized to prescribe reasonable geographical limits for the residence of the sureties or that they should be of respectable character and not men of doubtful social status. Again by Section 122 a Magistrate is given discretion to refuse to accept any surety offered or to reject any surety previously accepted by him 'on the ground that such surety is an unfit person for the purposes of the bond.' It was held by this Court in Zikri v. Emperor ('11) 11 I.C. 1008, that the primary test as to the fitness of a surety is whether the surety can exercise proper control over the person who has been bound over. To the same effect are the decisions of the Calcutta High Court in Emperor v. Asiraddi Mandal ('14) 1 A.I.R. 1914 Cal. 626 and Abdul Karim Emperor ('17) 4 A.I.R. 1917 Cal. 209, and of the Oudh Chief Court in Emperor v. Mahammad Bakhsh ('24) 11 A.I.R. 1924 Oudh 800. The Bombay High Court, on the other hand, has taken the view that where the sureties were solvent and respectable the mere fact that they were not in a position to exercise control over the person bound over was not a good ground for their non-acceptance, vide In re Jesa Bhatha ('20) 7 A.I.R. 1920 Bom. 292. Here again the weight of authority is against the Bombay view. If the sureties guaranteed merely the payment of the amount of the bond executed by the person bound over, the only relevant consideration would have been their solvency and the Legislature would not have given the wide discretion to the Magistrates that Section 122 does. Indeed all the elaborate provisions of the Code as regards character, class and fitness of the sureties would have been, in that ease, wholly superfluous. Proviso 3 to Section 118(i) enacts that
when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.
The reason for this proviso is no doubt the incapacity of a minor to enter into a contract, but this proviso puts it beyond doubt that the word 'surety' in Chap. 8, Criminal P.C., is not used in the limited sense which it connotes under the law of contract. Under this proviso even though the bond is not given by the minor bound over and is executed by the surety as the principal promisor he, nevertheless, in view of the undertaking given by him, is styled as a surety. Again on the forfeiture of a bond a Court is authorized by Section 514 to 'call upon any person bound by such bond to pay the penalty thereof.' If the liability of the sureties under the security sections was intended to be coextensive with that of the liability of the person bound over, the Legislature, far from making such, sweeping provision, would have only authorized the Court to call upon the person bound over in the first instance to pay the amount of the bond and in the event of his default would have given jurisdiction to the Court to call upon the sureties to pay the amount of the bond.
9. In Abdul Sattar v. Emperor ('38) 25 A.I.R. 1938 Oudh 195, reference was made by Hamilton J. to Section 513 of the Code in support of the view taken by him. With all respect to the learned Judge that section, in my judgment, far from countenancing the view taken by him, points to the contrary conclusion. That section gives option to the Court to permit a person who has been ordered to execute a bond, with or without sureties, except in the case of a bond for good behaviour, to deposit a sum of money or Government promissory notes in lieu of executing such bond. The option so given cam be exercised by the Court concerned only in cases falling within the purview of Sections 106 and 107 and not in cases dealt with by Sections 108, 109 and 110, for the simple reason that the last mentioned three sections provide about bonds fer 'good behaviour.' The policy underlying the sections is obvious. Persons who are called upon to execute bonds for their good behaviour are considered more dangerous to society than persons contemplated by Sections 106 and 107. It is for this reason that the Legislature has given discretion to the Courts in cases covered by Sections 106 and 107 to dispense with the execution of bonds and to order the deposit of cash or of promissory notes. The fact that no such option is given as regards recognizances for good behaviour shows that the sureties under those sections are considered indispensable as affording an additional guarantee for the good behaviour of the person bound over. For the reasons given above, I am in agreement with the decision of the Calcutta High Court in 36 cal. 562.10 The facts that led to the present reference are briefly as follows:
Two persons, viz., Ishwar Sahai and Narain Sahai, were bound over to keep the peace for one year under Section 107, Criminal P.C. Both of them furnished personal bonds in a sum of Rs. 200 each. Further Iqbal Husain and Moti Lal executed bonds as sureties for Ishwar Sahai in the same amount, viz. Rs. 200 each. Similarly two persons named Jagatpal Singh and Nanku Singh executed bonds in a sum of Rs. 200 each as sureties for Narain Sahai. Before the expiry of the period of the bonds both Ishwar Sahai and Narain Sahai were convicted of an offence punishable under Section 355, Penal Code, and thus were guilty of committing a breach of the peace. The Magistrate concerned, therefore, held that Ishwar Sahai and Narain Sahai as well as their sureties had forfeited their bonds. He, however, reduced the amount of the bonds from Rs. 200 to Bs. 100 and called upon Ishwar Sahai and Narain Sahai as well as the four sureties to pay Rs. 100 each. The order of the Magistrate was on appeal upheld by the District Magistrate. On an application in revision being filed by Ishwar Sahai, Narain Sahai and their sureties, the Sessions Judge, following the view taken by Hamilton, J. in Abdul Sattar v. Emperor ('38) 25 A.I.R. 1938 Oudh 195 held that Iqbal Husain and Moti Lal, sureties for Ishwar Sahai, could only be held jointly and severally liable with Ishwar Sahai to the extent of Rs. 100 and similarly Jagatpal Singh and Nanku Singh, sureties for Narain Sahai, could be held jointly and severally liable with Narain Sahai for the sum of Rs. 100 and that the liabilities of the sureties could not be in addition to the liability of Ishwar Sahai and Narain Sahai. He, therefore, recommended that the order of the Magistrate should be amended accordingly. For the reasons that I have already given I cannot accept the conclusion arrived at by the Sessions Judge and accordingly would reject this reference.
10. The facts have already-been set out in the judgment of His Lord-ship the Chief Justice. The reference, as I see it, really involves the construction of ten words of Section 107(1), Criminal P.C. A Magistrate, on receiving an appropriate information, is empowered by the section to require any person (in this case Narain Sahai and Ishwar Sahai) to show cause why he should not be ordered to execute '...a bond, with or without sureties, for keeping the peace....' It is in exercise of this-power that Narain Sahai and Iswar Sahai have been required in this ease by the Magistrate to execute the bonds of 26th November 1942 not to commit a breach of the peace and Jagatpal Singh and Nanku Singh and Iqbal Husain and Moti Lal have been required to execute their respective bonds of the same date as sureties.
11. It is clear that the 'bond' referred to in Section 107(1), Criminal P.C., is the bond of the person who is suspected of being likely to commit a breach of the peace and I think that the words 'with or without sureties' are descriptive of the type of bond that may be required of him by the Magistrate. It may be a bond 'with sureties' or it may be a bond 'without sureties;' or in other words, it may be a bond the due performance of which by the accused is or is not guaranteed by third parties. Had it been sufficient to determine this question as a matter of pure construction of the few words involved, unassisted by any context or by any of the authorities, I confess that I should have felt little hesitation in concluding that the expression 'bond, with or without sureties' was a composite expression and could mean nothing else than 'a bond, the contingent liability arising out of which is to be guaranteed or not to be guaranteed as the case may be, by sureties.' The bond to be taken from the accused in form engages him not to commit a breach of the peace and, in case, contrary to his own engagement, he does commit a breach of the peace, to-forfeit a sum of money (in this case Rs. 200) to His Majesty. The engagement of the accused is, therefore, in form twofold-first not to himself commit a breach of the peace and, secondly, to forfeit Rs. 200 to the King-Emperor if he does. In the bonds given in this case by the two sureties, Jagatpal Singh and Nanku Singh they engaged themselves to.stand sureties for...(the accused)...for this purpose that he shall not do any act amounting to a breach of the peace...and, if he commits any offence, we the sureties shall pay Bs. 400 as compensation to Government....
The drafting of this bond as a bond under Section 107, of course, leaves a great deal to be desired, since, not only does it wrongly create a condition of forfeiture on the accused committing 'any offence' and provide for the payment of 'compensation of Government,' but it appears to create a joint liability, without creating any several liability at all on the sureties. The other bond, taken from Iqbal Husain and Moti Lal, is slightly different in form, and, if the translation of it furnished in our paper book is to be taken as correct, is almost unintelligible. It says that the two sureties.do hereby stand as sureties for...(the two accused)...and declare that if (the accused) shall not do any act amounting to breach of peace against any subject of His Majesty the King-Emperor and in case of default we shall have the sum of Bs. 400 forfeited to His Majesty the King Emperor....
12. What this means it is hard to say. But the point of this reference is primarily whether 'sureties' can, under Section 107(1), Criminal P.C., lawfully be required positively to guarantee the observance by the accused of, their engagement to keep the peace, in the sense of providing an independent penal forfeiture by them of money (even in excess of the sum to which the principal obligor is engaged) to the King Emperor in case of the breach of the engagement by the accused to keep the peace, or whether under the section they could properly be required only to guarantee 'the bond' of the accused, in the sense of standing as sureties for the money liability of the accused to arise under it in case of a breach by him of his covenant himself to keep the peace. The bonds themselves are undoubtedly drafted, however imperfectly, in the former sense, but that is not conclusive of the matter, since the Court would obviously not dream of enforcing a bond even according to its literal terms, if the taking of it in those terms was ultra vires the powers of the Magistrate.
13. In my view, the first thing to observe is that what is to be guaranteed by the 'surety' under the section is the 'bond' of the accused. While it is perfectly true that the 'bond' of the accused himself contains two engagements-the first to keep the peace and the second to pay a sum of money to the King Emperor if he does not - it is quite certain that the only concrete 'liability' that can arise out of it is the liability to pay the sum of money in default. The former of the two covenants is really only the 'condition' of the bond, though expressed in the form of a covenant, while it is the latter engagement - the covenant to pay the forfeit to the King Emperor - that provides the only positive liability that can arise under it. I think it is a mistake to regard both the condition and the covenant to pay the forfeit as independent obligations of the bond. In my view, notwithstanding that the form in which the bond of the accused is expressed is that he gives two separate covenants, one expressing the condition and the other the penalty; it is, as I see it, only the latter that gives rise to any 'liability' in the sense which in strictness a surety can be called on to answer for.
14. The question, therefore, is whether on the true construction of the relevant passage of Section 107(1), Criminal P.C., the sureties which the Magistrate is entitled to require are sureties merely for the satisfaction of the liability in the sense of the forfeit imposed by the bond of the accused, or whether they can be required to fortify the bond of the accused in the sense of persons who are independently answerable to the King Emperor, not merely for the condition of failure of the accused to pay the forfeit under his own bond, but as independent persons answerable for the good behaviour of the accused. As I have already said, had the only consideration been the construction of the words themselves, I should' have found little difficulty in thinking that the natural meaning of the expression 'bond, with or without sureties' was that the bond to be taken from the accused, being one the only liability under which could be to pay money, was or was not, as the case might be, to be reinforced by sureties that the accused, in the event of a breach of his own bond, would fulfil the only positive liability arising out of it, namely the payment of the forfeit. That seems to me the more natural meaning of the expression.
15. Section 107, however, is part of a fasciculus of sections of the Code comprising chapter 8 dealing with security for keeping the peace and for good behaviour in various events. Sections 106 and 107 deal with security for keeping the peace and refer to a 'bond for keeping the peace' for various periods. Sections 108,109 and 110 deal with the taking of 'a bond for good behaviour' in various events. In each of these cases, the expression bond for keeping the peace or for good behaviour, as the case may be, with or without sureties, is employed, except where the bond, as in Section 109, if taken at all, is required to be one with sureties. Section 112 is designed to guide the Magistrate in the form of order he is to make whenever he decides that it is necessary to require the accused to give a bond tinder any of the foregoing sections and it is noticeable that he has under this section to make an order in writing setting out (among other things) 'the amount of the bond to be executed, the term for which it is to be enforced, and the number, character and class of sureties (if any) required.' As I read that section, the 'bond' referred to as being the one the particulars of which are to be set forth by the Magistrate in his order must necessarily be the bond to be taken from the accused and has nothing to do with any bond to be taken from his surety. This seems to me in itself to be some indication that it is assumed by the Code that the sureties are intended to guarantee merely the 'amount of the bond' to be executed by the accused and are not to be independent guarantors of his good behaviour subject to some independent liability of forfeit of their own, since, if the latter were the case, it would be very strange that among the things required to be stated by the Magistrate in his order there were not included the amount of the bond to be executed by the sureties.
16. It would surely be vital for the accused to have that piece of information, since, in showing cause it would be one of the most essential things for him to take into his consideration whether he could possibly find sureties in the amount demanded by the Magistrate. If, on the other hand, the sureties are intended merely to guarantee the amount of the bond taken from the accused, then it would be quite natural that the amount of that bond having once been stated by the Magistrate in the case of the accused, it would not be necessary to state it again in the case of the sureties. The next relevant section appears to be Section 118. This section relates to the proceedings on the inquiry conducted by the Magistrate when the accused has been brought before him to show cause under Section 112. It is instructive because it shows that the principal bond which the Code has in mind throughout as furnishing the security for good behaviour or for keeping the peace, as the case may be, is the bond of the accused himself. It provides first that 'no person' is to be ordered to give security for an amount larger than that specified in the order made under Section 118. This alone would appear to me almost completely to destroy the argument that a surety, as to the amount of whose bond Section 112 is, as I have pointed out, completely silent, should be required to give a bond in excess of the amount of the bond to be executed by the accused as disclosed under Section 112. I see no reason why the expression 'no person' in the first proviso to Section 118 should not include a surety just as much as the accused himself. If the Legislature had wished to limit it, it, could quite well have used the same expression as it used above, namely, 'person in respect of whom the inquiry is made' but it did not and used a perfectly general expression - 'no person.' Secondly, the proviso that the amount of each bond is to be fixed with due regard to the circumstances of the case and is not to be excessive, seems to me to have reference exclusively to the bond to be taken from the accused and again to point to the fact that what is in the mind of the Legislature is to secure the good behaviour of the accused by engaging him to a money forfeit, which money forfeit is or is not, as the case may be, to be guaranteed by sureties. Proviso 3 to Section 118, which can be read with Section 514B of the Code, seems to me even more strongly to point to the fact that, where the person in respect of whom the inquiry is made is a major and his bond is accordingly capable of being executed by him, the sureties are only to be liable by way of guarantee for the money forfeit. If this were not so, it is difficult to see why, only when the accused is a minor, the sureties should be required to assume by signing it all the obligations of the bond itself.
17. Pursuing the relevant sections of the Code, the next one I desire to refer to is Section 518, which again seems to me to point strongly to the view that the intention of the Code in requiring sureties is merely to provide a guarantee that the money forfeit secured by the bond of the accused himself will ultimately be paid. That section says:
Where any person is required by any Court...to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.
18. This means that, instead of taking from the accused a 'bond, with or without sureties,' the Court may take from him a sum of money or Government promissory notes, in which case obviously no question of suretyship can arise at all. It is inconceivable to my mind that under Section 513 the Court could take from an accused a deposit of a sum of money or Government promissory notes as security for his good behaviour or for his keeping the peace, and at the same time should still require sureties. This, I think, never has been and never could be suggested. If that is so, then it would again seem to point to the fact that what the Legislature is seeking when requiring sureties is not an independent guarantee of the future good behaviour of the accused (which, incidentally, it would not be a very fair thing in most cases to ask any surety to guarantee), but a guarantee that the sanction for the covenant of the accused himself that he will be of good behaviour or will keep the peace will ultimately be enforced.
19. The sections of the Code which I have so far examined seem to me, if anything, to point to construction of the words 'bond with or without sureties' in Section 107(1), Criminal P.C., as meaning a bond the penal provisions of which are to be guaranteed or not to be guaranteed, as the case may be, by sureties. But against this at least two considerations of construction and context are urged. The first arises out of Section 122(1) of the Code. That section says that the Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor, on the ground that such sureties are unfit persons for the purposes of the bond. This reference to the fitness of the person standing as surety (and it is to be noticed that the character of the sureties is also referred to in Section 112) is said to show that the person to act as surety is to be one who is sufficiently qualified to guarantee not merely any money obligation arising out of the bond of the accused, but also his personal conduct, in the sense of having some restraining influence over him. This argument, to my mind, has very little force. On either construction of the liability of the surety, that is to say whether he guarantees merely the penalty or the behaviour itself of the accused, his character is equally relevant. Obviously, if an accused person who has given a bond and made himself liable for a forfeit on breach of it prevails on a person to guarantee the payment of such forfeit, the character and standing of the guarantor are relevant on either footing. If it is a question of the mere payment of money, the credit of the guarantor is obviously a matter to be taken into account. And, looked at in another way, it is equally relevant since, even in the case of a guarantee only of the penalty, an accused person is much less likely to default in payment of that penalty if the person he has obtained to stand his surety is a person who by virtue of his character and standing is able to exercise an influence over him. I can myself see very little force in this argument.
20. A more difficult question arises, however, out of the form of the bonds to be taken from an accused person which are to be found as Forms Nos. 10 and 11 in Schedule 5 to the Code. This schedule is introduced by Section 555 of the Code itself which says that the forms contained therein, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and, if used, shall be sufficient. And we must take it, I think that the schedules to the Code must be read as part of the Code itself. Form No. 11 in Schedule 5 is the form of bond for good behaviour to be taken under Sections 108, 109 and 110, not, be it observed, under Section 107. The form first sets out a specimen of the bond to be executed by the accused himself binding himself first to be of good behaviour and, secondly, to pay a forfeit in case of his making default. It then goes on to provide a form to be executed by the sureties in a case in which the Magistrate requires sureties, and the specimen says that the sureties declare themselves to be 'sureties for the abovenamed' accused
that he will be of good behaviour to Her Majesty the Queen Empress of India, and to all her subjects during the said term...,and, in case of his making default therein, we bind ourselves, jointly and severally, to forfeit to Her Majesty the sum of rupees.
It is said that this form is appropriate only to the view that the sureties are required positively to guarantee two things, and not merely one, namely, both that the accused will be of good behaviour and that, if he is not, they (the sureties) will be liable to forfeit a sum of money to the King Emperor, independently of any forfeit that the accused himself is engaged to make.
21. I agree that this form at first sight lends some colour to that view. But, in the first place, I should have considerable diffidence in modifying what I considered to be a clear construction of the substantive sections of the Code itself by reference to a form provided in the schedule, notwithstanding that the schedule has to be read as part of the Code. But, I do not, however, think that, on a close examination of the form contained in the schedule there is any real inconsistency. Once the substantive sections themselves have been examined and a conclusion reached on them alone that the Surety is to be required to guarantee the payment of the penalty by the accused and no more, then, I think the form in the schedule, which after all is only a form to give effect to the substantive section, easily falls into place. Just as, as I have already pointed out, the bond of the accused is in form a bond containing two independent covenants the first being the condition and the second being the penalty, so the bond to be executed by the surety is also in the form of two independent covenants, the first guaranteeing the good behaviour of the accused and the second, being the operative covenant, engaging the surety to pay the forfeit. Nor do I see any reason why it should be assumed that the blank sum of rupees to be filled in as the amount for which the surety engages himself should be assumed to be some sum which is, or is capable of being, different from the sum to be forfeited by the accused himself. If, on the true construction of the substantive sections, the sureties are sureties for the payment of the penalty only, then the sum to be filled in would be the same sum as the sum for which the accused himself is engaged. Though I agree that this form contained in the schedule might have been differently expressed, it does not seem to me, once the substantive section has been construed, to be necessarily inconsistent with it, unless one is determined to go out of one's way to make it inconsistent.
22. But this is all on the assumption that the specimen of suretyship bond contained in Form No. 11 of Schedule 5 applies to a bond under Section 10Y. The schedule in Form No. 10 has given a specimen of bond to be executed by the accused himself under Section 107. But it is exceedingly curious that there is no form of suretyship bond given in the schedule appropriate to Section 107, the form of suretyship bond given in Form No. 11 being expressly confined to Sections 108, 109 and 110. What the reason of this is I cannot say. But, if we are to be technical as to the effect of the schedule in governing the substantive provisions of the Act, it at least enables us to say that there is no form contained in Schedule 5 which is made applicable to a suretyship bond under Section 107. I should not, however, desire to rest my actual decision upon that point, since, in the view I have taken, it is not necessary to evade in that way the consequences of the form of suretyship bond given in Form No. 11 in Schedule 5.
23. So far I have discussed this question as a matter o pure construction only without reference to the authorities, which are numerous. I have very carefully considered all of them, but I confess to feeling that no very useful purpose will be served by considering them in this judgment at great length since they conflict with each other, while some represent judgments in which the reasoning is not reported and others represent ex parte decisions. But it is fair to say that, taking the authorities as a whole they incline in number against the view which I have myself ventured to express in this judgment. I propose to examine only a few of the relevant decisions which are referred to at greater length in the judgment of my learned brethren on this Full Bench.
24. In our own Court there is first in 1898 a dictum of Sir John Edge in Queen-Empress v. Rahim Bakhsh ('98) 20 All. 206 to the effect that the object of requiring security to be of good behaviour is, not to obtain money for the Crown by the forfeiture of recognizances, but to ensure that the particular accused person shall be of good behaviour for the time mentioned in the order. The point actually before the learned Chief Justice was merely whether a particular surety, who lived in a different tahsil from that of the accused, should on that account be rejected as a surety. The decision went no further than that and the learned Chief Justice observed that it seemed to him reasonable to expect and require that a surety should not be a man who lived at such a distance as would make it unlikely that he could exercise any control over the man for whom he was willing to stand surety. It was merely to that very reasonable expression of opinion that the learned Chief Justice prefaced his remark that the object of requiring security to be of good behaviour was not to obtain money for the Crown but to ensure the conduct of the accused. As a decision, therefore, this case is no authority for the construction of Section 107.1 entirely agree with respect with Sir John Edge that the object of requiring security is to ensure the good conduct of the accused. But, as I see it, that object is secured almost as much by bringing in the surety as a surety for payment of the forfeit as by requiring him independently to guarantee the conduct of the accused since in either case the accused will hesitate to break his own engagement where he knows that responsible persons having influence over him will suffer in consequence.
25. In 1903 a case came before Sir John Knox and Ackman J., in reference to a bond given by an accused person with a surety under Section 107, Criminal P.C., Emperor v. Raja Ram ('04) 26 All. 202. But it appears to have no reference to the question with which I am now dealing. The case which is most definitely opposed to the view I have expressed is that of Saligram Singh v. Emperor ('09) 36 Cal. 562 decided by two of the learned Judges of the High Court at Fort William. The proceeding in that case was a proceeding under Section 107 of the Code, in which the accused person, Salig Earn Singh, was bound in a sum of Rs. 100 to keep the peace for a year and one Kuldip Singh bound himself as surety in a sum of fifty rupees that the accused would commit no breach of the peace during that period. In the events which happened Salig Ram's bond was declared forfeited and both he and the surety were ordered to pay the amounts of their respective bonds. The surety, Kuldip Singh, thereupon appealed and specifically took the point that the Magistrate was not empowered to require a double payment, that is to say, a penalty of fifty rupees from the surety as well as a penalty of a hundred rupees from the accused himself. This does raise the exact point. The judgment of the learned Judges is a relatively short one, in which' they say:
Prima facie, no doubt, a surety merely agrees to pay the creditor failing the debtor, and Ms liability is, as a rule, co-extensive with that of the principal. But this is not a case of ordinary suretyship for the payment of money. As pointed out by Edge C.J. in Queen-Empress v. Rahim Bakhsh ('98) 20 All. 206 (which is the case I have referred to above) the object of these provisions of the Code is to prevent crime and not to obtain money for the Crown. It is not, as in the case of, for example,]an administration bond with sureties, the object to secure the payment of money or the avoidance of pecuniary loss....
That is the only reasoning in the judgment, and with great respect to these learned Judges I venture to think that it rather assumes, on the strength of the dictum of the late Chief Justice of our own Court, the true construction of the relevant sections than determines it. As I have already pointed out, the dictum of Sir John Edge was made in reference to and for the purpose only of reinforcing another point altogether and I cannot help feeling that that very learned Chief Justice, had he then had before him the point which we now have before us, might have more carefully examined, in the light of the actual language used, what the intention of the Legislature really was.
26. Except to say that with great respect I agree with the decision of the learned Judge in the cases in Emperor v. Abdul Aziz ('24) 11 A.I.R. 1924 Lah. 262, Namdeo Chimnaji v. Emperor ('38) 25 A.I.R. 1938 Nag. 275 and Abdul Sattar v. Emperor ('38) 25 A.I.R. 1938 Oudh 195. I do not propose, for the reasons I have already expressed, to examine the remaining authorities, which do not, I think, carry the matter any further. For the foregoing reasons, in my judgment, the reference of the learned Sessions Judge of Fatehpur, dated 18th July 1944, falls to be answered in the abstract as follows:
A person who, pursuant to Section 107(1), Criminal P.C., stands as surety for a bond for keeping the peace entered into under that section by a person who has been required thereunder to execute a bond for keeping the peace cannot, as such surety as aforesaid, be called upon to do more than guarantee the payment by such last mentioned person of the amount to which he is engaged by way of forfeit under his said bond and, in the case of joint sureties, such sureties cannot jointly be called upon to any greater extent than aforesaid.
27. This is a reference which raises a question of the meaning of a 'bond with sureties' under the Code of Criminal Procedure. Two persons Ishwar Sahai and Narain Sahai were bound over by a Sub-Divisional Magistrate to keep the peace for one year under the provisions of Section 107, Criminal P.C. They were ordered each to furnish a personal bond in Rs. 200 with two sureties in the like amount. Before the period of these bonds had expired, Ishwar Sahai and Narain Sahai were convicted under Section 355, Penal Code, and sentenced each to undergo one year's rigorous imprisonment which sentence was, however, altered by the Sessions Judge who substituted a fine of Rs. 200 each. In consequence of this conviction, the Sub-Divisional Magistrate held that the bonds had been forfeited and he accordingly called upon all the persons bound by these bonds to pay the penalties, thereof. (I am quoting the words of Sub-section (1) of Section 514, Criminal P.C.) In making this order, the learned Magistrate relied on the decision of a Division Bench of the Calcutta High Court in Saligram Singh v. Emperor ('09) 36 Cal. 562. This order was made on 6th December 1943 and an appeal from this order was dismissed by the District Magistrate on 7th March 1944. An application was then made to the Additional Sessions Judge of Cawnpore at Fatehpur who, relying on an Oudh decision, Abdul Sattar v. Emperor ('38) 25 A.I.R. 1938 Oudh 195, has made a reference to this Court recommending that Iqbal Husain and Moti Lal sureties for Ishwar Sahai should be held jointly and severally liable only to the extent of Rs. 100 and similarly Jagat Pal Singh and Nankoo Singh sureties for Narain Sahai should be held severally and jointly liable for the amount of Rs. 100 and the liability of the sureties should not be an addition to this liability of the principal but an alternative, that is to say, each principal and his two Sureties should be liable only for Rs. 100 and anything recovered from the principal or the sureties should be set off against this liability of Rs. 100. The matter came up originally before a single Judge by whom it was referred to two Judges who in their turn referred it to a larger Bench and it has thus come before this Full Bench.
28. The contention put forward on behalf of the sureties is that the sureties under such a bond are liable only to make good the amount of the penalty recoverable from the principal, that is the person bound over, if that principal does not make good the penalty. Reliance has been placed before us on the Oudh decision referred to by the learned Additional Sessions Judge as also upon King-Emperor v. Nga Kaung ('05) 2 Cri.L.J. 463, in which the Additional Judicial Commissioner of Upper Burma adopted the view that such a bond is similar to an ordinary money bond and in consequence the sureties are not subject to an independent liability or penalty. Mention was also made of a Patna case Kishan Narayan Singh v. Emperor ('22) 9 A.I.R. 1922 Pat. 242 for the view that the proceedings under Section 514 are of a civil nature. Reliance was also placed on some Lahore eases, but in this connexion it is to be noted that three of these cases, Kaku v. Empress ('94) 26 P.R. Cr. 1894 at p. 87, Emperor v. Abdul Aziz ('24) 11 A.I.R. 1924 Lah. 262 and Jawaiya v. Empress ('90) 30 P.R. Cr. 1890 at p. 97 were prior to the decision of a Division Bench in Sardar Khan v. Emperor ('37) 24 A.I.R. 1937 Lah. 133, a case of the year 1937, while the fourth case upon which reliance was placed was a single Judge decision of the year 1940 in which the attention of the learned single Judge was not drawn to the Division Bench decision. Reliance was also placed on a Nagpur decision, Namdeo Chimnaji v. Emperor ('38) 25 A.I.R. 1938 Nag. 275.
29. For the opposite view, the learned Deputy Government Advocate has been able to point not only to the Calcutta case in Saligram Singh v. Emperor ('09) 36 Cal. 562 on which reliance has been placed by the learned Magistrate but also to the Lahore case, Sardar Khan v. Emperor ('37) 24 A.I.R. 1937 Lah. 133, to the decision of the High Court of Madras in Kular Annappa Naick v. Emperor ('09) 3 I.C. 470, (a case of a surety executing a bail bond), and to two cases of Sind reported in Jeomal v. Emperor ('26) 13 A.I.R. 1926 Sind 180 and Abdul Karim v. Emperor ('33) 20 A.I.R. 1933 Sind 320. There is no case of this Court directly in point but it is noteworthy that the decision in Saligram Singh v. Emperor ('09) 36 Cal. 562 was to a considerable extent based on the dicta of Edge C.J., in Queen-Empress v. Rahim Bakhsh ('98) 20 All. 206. The view taken by the Calcutta High Court was also impliedly accepted by a Bench of this Court in Emperor v. Raja Ram ('04) 26 All. 202, when an order that both A the principal person bound over under Section 107, Criminal P.C., and B the surety should have their bonds forfeited and should pay in the case of A the full penalty of Rs. 200 and in the case of B a mitigated penalty of Rs. 100 was maintained.
30. Apart from this weight of authority, witb all respect I believe the view taken by the-Division Benches of Calcutta and Lahore to be correct. The opposite view, as it appears to me, involves regarding the words 'a bond with sureties' as if it was merely a simple money bond. But it appears to me that this view which was rejected by Edge C.J., as far back as the year 1898 is fallacious. It is true that a bond may be nothing more than an instrument whereby a person obliges himself to pay money to another on condition that the obligation shall be void if a specified act is performed or is not performed as the case may be, vide Sub-section (5)(a) of Section 1, Stamp Act. But that very section shows that the word 'bond1' carries other meanings. Fowler in the Concise Oxford Dictionary includes among the explanations or definitions of the word 'bond' 'binding engagement, agreement, deed by which A binds himself and his heirs etc to pay a sum to B and his.' The New Century Dictionary contains among the-definitions or explanations the following : 'A legal deed by which a person engages himself and his representatives to fulfil specific conditions or pay monies.' Prima facie, a bond for keeping the peace is an undertaking to keep the peace, subject to penalties in case of breach of the undertaking, that is it involves two undertakings. It seems to me to be natural that in the case of such a bond which contains two undertakings, the sureties must be regarded as sureties for both undertakings, and that this is so appears very clear from the form of the bond framed under Section 555 of the Code for bonds with sureties under Sections 108, 109 and 110. The form of bond which is No. XI of Schedule V of the Code is similar in its wording to the form of bond and bail bond after arrest under a warrant Form HI of the same schedule, as also to the form of bond and bail bond on a preliminary inquiry before a Police Officer (vide Form XXV of the same schedule) and also to Form XLII for bond and bail bond on a preliminary inquiry before a Magistrate. In all these cases the surety binds himself that the person on whose behalf he stands surety will do something, keep the peace, be of good behaviour, present himself in Court at the proper place and time, undertakes that in case the principal makes default therein, he the surety will forfeit to His Majesty the King, Emperor of India, a certain sum of rupees. It is true that in the case of the various bail bonds, the bail bond is set out as a separate undertaking by the surety evidently intended to be executed on a separate form, whereas in the case of Form XI the sureties are evidently expected to sign on the same form as that used by the principal, since the form contains the words 'where a bond with sureties is to be executed, add' that portion which relates to the undertaking given by the sureties. But this appears to me to be a distinction without a difference. In Form XI the sureties declare themsleves to be sureties for the abovenamed (that is the principal) that he will be of good behaviour to His Majesty the King, Emperor of India, and to all His subjects during the said term or until the completion of the said inquiry, and in ease of his making default therein (that is in being of good behaviour), they bind themselves jointly and severally to forfeit to His Majesty the sum of rupees.... There is no difference between this undertaking and the undertaking to produce a certain person before the Court (vide, for example, Form HI in which the surety declares himself a surety for the abovenamed...that he shall attend before...in the Court of...on a certain date next to answer to the charge on which he has been arrested and shall continue so to attend until otherwise directed by the Court, and in case of his making default therein, the surety binds himself to forfeit to His Majesty, the King, Emperor of India, a certain sum of rupees). In all these cases of bail bonds there is a separate undertaking, in effect an undertaking to produce the accused person in Court, subject to a penalty in case the surety fails to make good his undertaking. Similarly in the case of the various bonds with sureties under Sections 107, 108, 109 and 110 the surety under-takes that the principal will keep the peace or will be of good behaviour and if the principal makes default therein, the surety will forfeit to His Majesty the King, Emperor of India, a certain sum of money.
31. The inference to be derived from the forms of bonds is confirmed by the forma of notice to be issued under S.5U on breach of a bond. These are Forms XLV and XLVI, In these notices the attention of the sureties is drawn to the fact that the principal has failed to appear or has been convicted of an offence after the surety became surety, whereby the security bond has become forfeited. The wording is not exactly the same, but it seems to me to make no difference. In each case the surety is required to pay the said penalty or show cause why its payment should not be enforced against him. In case it be argued that there is no prescribed form for the bond to be executed by the surety in cases under Section 107, whereas there is a form of bond and a form of notice for cases which fall under Sections 108, 109 and 110 and cases of breach of bail bond, it seems to me that no inference can be drawn from this, bearing in mind that the same words 'execute a bond with or without sureties' appear in Sections 107 and 108, while in Sections 109 and 110 the principal is to be ordered in all cases to execute a bond with sureties. A suggestion has been made that some inference in favour of the opposite view may be derived from the provisions of Section 513. That section provides:
When any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or Officer may fix, in lieu of executing such bond.
32. I am not satisfied that any certain inference can be drawn from the provisions of this section. And I note that in Laxman Lal v. Mulshankar Pitambardas ('08) 32 Bom. 449 at p. 453, it was held incidentally that the deposit in cash allowed by this section to be substituted is only in lieu of the bond which the principal himself would execute and not in substitution of any bond which his surety executes. On the other hand, I cannot help thinking that the provisions of Section 122 of the Code are a clear indication that a surety within the meaning of Sections 106, 107, 108, 109 and 110 is not a mere guarantor of the amount of penalty which may be exacted from the principal in case he makes default in the performance of his undertaking. That section gives the Magistrate power to refuse to accept a surety or to reject a surety previously accepted by him or his predecessor on the ground that such surety is an unfit person for the purposes of the bond. The trend of rulings, which on this section are exceedingly numerous, is that the pecuniary fitness of the surety is not the only test. Sureties pecuniarily fit have been rejected on the ground that they were persons residing at a distance from the residence of the accused and therefore unlikely to exercise any control over him. Persons have also been rejected on the ground of bad character.
33. At the same time I am bound to concede that the wording of Section 112 is somewhat against the view I take inasmuch as the Magistrate is enjoined to make an order setting forth ' the amount of the bond to be executed, and the number, character and class of the sureties (if any) required' but not the amounts in respect of which they are to be liable in case of forfeiture. The provisions of Sections 126 and 126A may perhaps also afford some support to the opposite view, since they suggest that there is in those cases only a single bond, namely that executed by the principal. On the other hand Section 502 is in very similar terms, and it does not seem to have been doubted in the past that the executant of a bail bond is liable to pay the penalty agreed to by him in case the accused whose presence has been guaranteed absconds.
34. To sum up, while I am not prepared to say that the matter is free from doubt, yet bearing in mind the general trend of decisions including those of this Court, the considerations to which I have drawn attention above, and the form of bond into which the sureties themselves entered in the present case, I am of opinion that the Magistrate rightly ordered that the bonds of the sureties be forfeited and that the sureties should pay up the amounts of penalty as reduced by him. I would, therefore, reject the reference.
35. I have had the benefit of reading the judgment of my brother Braund. At one stage I was inclined to take the same view. To every civil lawyer the word 'surety' conveys a definite meaning. It suggests that the person is only guaranteeing the fulfilment of a promise made by another and necessarily, therefore, his liability can in no case exceed that of the principal. Further, if the principal has fulfilled his undertaking, the surety is discharged and can no longer be held liable. If, therefore, stress is laid on the point that the ultimate liability of the principal accused is the payment of a certain sum of money in case he forfeits the bond by either committing the breach of the peace or by ceasing to be of good behaviour, then the surety's liability must of necessity be held to be the same as in civil cases, i.e. he is liable to pay the amount which the principal has forfeited and the amount cannot be realised from him if it has already been realised from the accused who has become, so to say, the principal debtor. To my mind, however, the bonds given by the accused and the sureties under Sections 107, 108 and 109, Criminal P.C., cannot be interpreted in the sense that they give rise to money liabilities only. The Legislature itself has contributed to the confusion by using the words 'a bond with surety' and has not made it clear that the sureties are to execute a separate bond till we come to the forms in the schedule framed under Sections 554 and 555, Criminal P.C., nor is it made clear that a surety may be required to execute a bond for an amount different from the amount for which the principal accused is required to execute a bond.
36. I agree most respectfully with the observations of Edge C.J., in Queen-Empress v. Rahim Bakhsh ('98) 20 All. 206 that the principal object behind a bond is not to obtain money for the Crown by the forfeiture of recognizances, but to insure that the particular accused person shall be of good behaviour for the time mentioned in the order. That this is so is clear from the fact that Section 118 of the Code provides that the amount of the bond should not be excessive considering the circumstances of the case. If, therefore, the sum fixed is such that the accused can pay it, there does not seem to be much point in demanding sureties. It is not financial considerations on which a Court decides whether a bond should be with or without sureties but it is on the gravity of the offence. If, therefore, the material undertaking is deemed to be that the accused would keep the peace or be of good behaviour, the surety must be deemed to guarantee that and to that extent he is rightly called a surety. But so far as the payment of money is considered, each undertakes an independent liability. Apart from the fact that the balance of authority is in favour of that view, we have the fact that surety bonds under Section 107, Criminal P.C., all over this province, so far as I know, follow the Form No. XI in Schedule III, Criminal P.C., which, to my mind, clearly implies an independent liability of the surety if the accused breaks his bond and does not keep the peace. The object clearly is not so much that the surety should pay money but that he should exercise restraint on the illegal activities of the accused.
37. The bonds in this case have been badly translated and clumsily drafted, but the meaning is absolutely clear that the sureties undertook to see that the accused kept the peace and if he did not, the sureties would forfeit a sum of money to the Crown. This too is, to my mind, by way of punishment as the sureties did not successfully exercise the restraint on the accused which they had promised to do and which undertaking they had failed to fulfil. It is true that no form of surety bond under Section 107, Criminal P.C., is given in the schedule but I cannot attach much importance to that as the language of Sections 107, 108 and 109 is, for all practical purposes, very similar and under Section 555, Criminal P.C., the Form No. XI can be used for a surety bond under Section 107, Criminal P.C., nor do I attach much importance to the fact that the Criminal Procedure Code talks of 'a bond with surety' and apparently does not seem to contemplate more than one bond. Under the General Clauses Act, the singular includes the plural and the forms given in the schedule, which must be deemed to be a part of the Act, clearly indicate that the accused and the sureties are required to execute separate bonds. I was a party to the decision in Abdul Aziz v. Emperor : AIR1946All116 where it was held that
the surety does not guarantee the payment of any sum of money by the person accused who is released on bail but guarantees the attendance of that person. He is a surety for attendance and not a surety for payment of money. His contract and the contract of the person released on bail are independent of each other. The simple fact is that the surety promises to pay a certain sum o money if the person accused does not appear at some time and place as required by law. If that person does not appear, the money is forfeited.
A previous decision of mine in Nesar Ahmad v. Emperor : AIR1945All389 was approved. After having carefully considered the point I see no reason to change the opinion already expressed by me in the two eases cited above. I would, therefore, hold that the liability of the sureties was independent of the liabilities of the principal accused and uphold the order passed by Mr. B.C.L. Asthana, Sub-Divisional Magistrate of Khaga, on 6th December 1943, and reject this reference.
38. It appears to be a fact that since the Code of Criminal Procedure was enacted, the Courts in the Agra Province have construed the preventive sections of the Code in Chap. VIII as providing that the liability of those who offer themselves as sureties for persons who are required to furnish security (under Sections 106 to 110) is distinct from the liability of the latter. That is to say, they execute separate bonds on forfeiture of which they may be required to pay the amounts entered in them, irrespective of the liability of the person required to furnish security, this being by way of further assurance for his keeping the peace or for his good behaviour, and not for realising the amount by which he has bound himself. It is true that there has been no express decision by this Court on the point, but the reason for this appears to be that the correct, ness of this view has never previously been questioned in this province. The only case of this Court placed before us in which the question might have been raised is Emperor v. Raja Ram ('04) 26 All. 202. In that case a bond taken under Section 107 from one Raja Earn and a security taken from one Basdeo as his surety were declared forfeited. Eaja Earn was called upon to pay the penalty of Rs. 200 for which he had made himself liable and Basdeo a mitigated penalty of Rs. 100 in addition. The statement of the facts which precedes the judgment shows that bonds were executed by each. The only question primarily before the Bench was whether their recognizances could be forfeited some time after the conviction of Raja Earn of an offence under Section 353, Penal Code, no steps to do so having been taken at the time of conviction. Answering this question in the affirmative the Bench observed that they saw no cause to interfere. This clearly shows that there was at that time (1903) no idea of questioning the view that the amounts entered in the bonds of the person against whom the order was passed under Section 107 and his surety could both be forfeited.
39. There can also be no doubt that the weight of legal authority is in favour of this view. Against it there is the authority of the Judicial Commissioner's Court of Upper Burma, the Chief Courts of Lower Burma and Oudh, and the High Court of Nagpur; for it, in addition to the consistent practice of the Courts of this province, never questioned apparently by the High Court, there is the authority of the High Courts of Madras, Calcutta and Lahore and the Judicial Commissioner's Courts of Peshawar and Sind. Earlier decisions of the Lahore High Court in which a contrary view was taken were overruled in Sardar Khan v. Emperor ('37) 24 A.I.R. 1937 Lah. 133 : vide Chitaley's commentary on Section 514 of the Code, Note 10. In my judgment the view hitherto taken by this Court is correct and there is no reason to depart from the construction which has been placed upon these provisions of the Code over such a long period. The fallacy which to my mind underlies the other view is that the provision for the execution of a bond with sureties means necessarily that only one bond shall be executed. If there was nothing else to guide us, the provision might certainly be construed as meaning that only one bond should be executed, but it seems to me that there are clear indications in the Code that the expression is open to another construction and that the former was not the construction intended when security is called for under these sections.
40. The illustrative Form XI in schedule V expressly provides that the surety or sureties become liable for the amount stated therein on the person proceeded against making default in what is required of him, that is, to keep the peace or be of good behaviour. There is nothing whatever except the use of the word 'surety' to suggest that that liability shall be in any way dependent on anything else, that is, that it shall not arise at all if the bond executed by the other per-son has been discharged. The form is that approved under Section 555 of the Code. Secondly there is express reference to the surety's separate bond in the notice issued to a surety of forfeiture of bond. The notice states that he became surety by a bond and that for certain reasons this 'security bond' has become forfeited. By 'security bond' in this context, I understand, is meant a bond by which he gave personal security. Thirdly there is the analogy from bail bonds required under Sections 76 or 86. Section 76 provides that where a warrant is issued for the arrest of any person the Court may in its discretion direct by endorsement on the warrant that, if such person execute a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. Section 86 contains a somewhat similar provision for bail when a person arrested is brought before the Court. Form III of Schedule V is the form approved in the latter case. It clearly shows that there are two bonds, a bond and a bail bond, and the wording of the latter is similar, mutatis mutandis to that of Form XI. The person whose appearance is required binds himself to attend on a certain date and in default to forfeit a certain sum. The surety binds himself to forfeit a certain sum if the said person makes default in attendance. Form XXV - again for 'bail and bail bond' - is similar. The only distinguishing points are that in Section 76 the word 'sufficient' has been inserted before 'sureties' while it is not in the preventive sections, and the endorsement is required to state inter aha the amount in which the sureties and the person for whose arrest the warrant is issued are to be respectively bound, while there is no express suggestion in the preventive sections that the amount by which each person is bound may vary. In my opinion these variations have no significance.
41. That both the person required to furnish security and his sureties are liable in the case of bail was held by the Madras High Court in Kular Annappa Naick v. Emperor ('09) 3 I.C. 470, where it was held that the surety is not discharged by the fact that an accused has paid the amount of his own bond; and there is a ruling to the same effect in Abdul Karim v. Emperor ('33) 20 A.I.R. 1933 Sind 320. The word 'surety' connotes a person who gives security and there is no reason why that security should not be given by a separate instrument, as where, for instance, when a defendant is required to furnish security for his appearance under Order 88, Rule 2, Civil P.C., a person executes a bond as surety for his appearance. There is also the provision in Section 514B, Criminal P.C., that where the person required to execute a bond is a minor, the Court may accept, in lieu thereof, a bond executed by a surety or sureties only. When the Code provides for the execution of a bond with sureties, this, considered with other provisions, means, in my judgment, a bond with another person or persons giving security in another bond or bonds in a form similar to that approved under Section 555. As there are in my opinion clear indications that it is intended that the word 'sureties' should be construed in the wider sense hitherto accepted in this province, I see no reason why it should be construed in the narrow sense for which the learned Counsel who supports the reference has contended. I would, therefore, reject the reference.
42. The reference is rejected.