Raghubar Dayal, J.
1. Chhotey Lal and his nephew, Ram Sarup, appeal against their conviction under Section 866, Penal Code.
2. Chhotey Lal filed a complaint under Section 498, Penal Code and obtained a warrant for the arrest of Mt. Katori as a witness. He alleged that Mt. Katori was his wife. The Tahsildar Magistrate issued the warrant Ex. P-3 under Section 90, Criminal P.C. The warrant empowers the police officer to arrest Mt. Katori and produce her in Court. It further said that after arrest she be delivered to a person approved by Chhotey Lal. In execution of this warrant Mt. Katori was arrested by Mehdi Husain, constable, at her father's place on 18-1.1945. He obtained a surety bond from Ram Sarup in the sum of Rs. 500 for the due appearance of Mt. Katori in Court on the appointed day. No personal bond was executed by Mt. Katori. She was in fact not re-quired to execute it. She did not want to go with Ram Sarup. Ram Sarup and Chhotey Lal accused forcibly took her away and kept her at their house. It is this conduct of the accused which is the basis for the present complaint and the conviction of Chhotey Lal and Ram Sarup.
3. On 20 1-1945, that is, two days after the incident, Girdhari Lal filed the present complaint under Sections 366 and 342, Penal Code, against the appellants. He alleged that Mt. Katori was his wife; that he had a daughter from her and that she was in the family way. He further mentioned that previous to this incident, Chhotey Lal had applied under Section 100, Criminal P.C., and that Mt. Katori had been arrested but the application was struck off on 28-11-1944, after the recording of her statement in Court.
4. Chhotey Lal, accused, admits to have kept Mt. Katori in his house for three days after her arrest and states that he wanted her to live at his house. He, however, alleged that she had come quite willingly and that she was his wife.
5. Ram Sarup accused stated that he caused her to be arrested, took her under his surety - ship and kept her in his house with the motive that she might live along with Chhotey Lal as his mistress. He also alleged that she was the wife of Chhotey Lal and that it was the Sub-Inspector who suggested to Chhotey Lal that she be kept under the custody of his nephew. In the Sessions Court, Chhotey Lal stated that his previous complaint under Section 498, Penal Code, was got struck off by him as the Magistrate was not acting fairly and did not record the favourable statement of Mt. Katori.
6. The evidence on the record sufficiently establishes that Chhotey Lal and Ram Sarup had forcibly taken away Mt. Katori after her arrest at her father's place on 18-1-1945. It is also in evidence and is admitted by the two appellants that she was kept at the house of the accused persons. Mt. Katori was recovered from the house on 21-1-1945, by Mr. Dhanpal Singh, Station Officer, P.W.2.
7. The main and practically the sole contention of the appellants is that no offence under Section 366, Penal Code, is made out against them the reason being that Ram Sarup was delivered the custody of Mt. Katori by the constable, that he was responsible for producing her in Court and that, therefore, he could use force in taking her away and keeping her in his custody till the appointed date. The contention raised an important question of law and that was why this case was referred to the larger Bench.
8. The main question is as to what are the rights of a surety with respect to the person for whose appearance in Court he stands as a surety. There is nothing express in law that a person, who stands surety for the appearance of another in Court, can exercise such control over the movements of the other as be against his will in order to ensure his appearance in Court. It, however, stands to reason that, as the surety is responsible for the appearance of the other person in Court and his liability to the forfeiture of the bond will arise by the mere fact of the non-appearance of the other party, he should have some sort of control over the other person. This has been in a way recognised in the cases reported in Rafubar Dayal v.Emperor ('38) 25 A.I.R. 1938 Oudh 81 and Mauj Ali v. Emperor ('30) 17 A.I.R. 1930 Lah. 591. We are, however, of opinion that, this type of control is of such a nature as be in the contemplation of both the surety and the person arrested. Section 76, Criminal P.C., authorises the Court issuing a warrant for the arrest of any person to make the warrant it bailable warrant. To make it so the Court is to endorse on the warrant that if the arrested person executes 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 shall take such surety and shall release such person from custody. This section indicates that the option of offering bail vests in the person arrested. He has to execute a bond with such sureties as the Court demands. If he does not execute a bond, no question of sureties arises. The Court is not empowered to order the release of an arrested person on the execution of surety bonds by sureties without obtaining a bond from the accused himself. The provisions of Sections 76 and 499. Criminal P.C., are practically similar. It was held in Brahmanand Misra v. Emperor : AIR1939All682 that it was incumbent under Section 499, Criminal P.C., to get a bond executed by the person who is released on bail and unless that is done, there could be no valid bond by a surety alone. This view was not acceptable to Malik J. in Nisar Ahmad v. Emperor : AIR1945All389 . He, however, observed that:
When, therefore, an accused person has been released on bail merely on the undertaking of the accused's surety and a bond is executed by the surety, without the accused having been required to execute a personal bond, it may be that the officer or the Court has acted in an irregular manner and the accused should not have been released on bail, but I do not see how that fact can in any way affect the liability of the surety who had undertaken to produce the accused before the Court.
This latter view was accepted by Allsop and Malik JJ. inAbdul Aziz v. Emperor : AIR1946All116 . The Court is not to release a person on bail unless the person himself desires to be let off on bail. It follows, therefore, that the primary motive which brings into operation the provisions about the furnishing of bail is provided by the desire of the person arrested to avoid custody and to be set at liberty. It is in furtherance of this desire that at his express or implied request and consequently with his express or implied consent other persons offer themselves as sureties for him. Any necessary control which a surety ought to exercise over the movements of the person arrested is, therefore, implied in the expressed or tacit consent of the person arrested. It is the necessary result of the taking of the liability of the surety to the forfeiture of the surety bond in case the person arrested does not appear in Court. Further, we are of opinion that such control is not unlimited in extent. It is to be the minimum control and is to an extent upto such minimum period which is pre-requisite for the surety to put himself in contact with the public authorities in order to get himself relieved of the surety bond and to enable the Court to pass such suitable orders about the person as be necessary. To illustrate the point, we may refer to the fact that some surety happens to know that the person for whom he has stood surety intends to run away. The surety need not run the risk of the man's disappearance by just taking steps to inform the Court or the public authorities. He may restrain the movements of the person. He may even confine him or take him by force to the Court or the public authorities. He must take immediate steps to lay the facts before the Court. He cannot merely keep the man in confinement till the date fixed for his appearance in Court.
9. In the present case, the direction in the warrant Ex. P-3 was a direction which was not warranted under any provision of law. Section 90, Criminal P.C., just empowers a Court to issue a warrant for a person other than a juror or assessor in certain circumstances. The provisions of Section 76, Criminal P.C., would be applicable to the warrants issued under Section 90. The provisions of neither of these sections empower the Court to order the physical delivery of a person to another. The Court can only order the release of the person arrested and can lay down the condition for such release. It follows, therefore, that the direction in warrant was illegal. It proved to be very unfortunate for Mt. Katori.
10. Mehdi Husain, constable, was in a way bound to follow the direction. He could not have thought of disobeying it. He, however, did not act strictly according to the direction. He did not merely deliver Mt. Katori to Ram Sarup but exercised his discretion and obtained a surety bond from Ram Sarup in the sum of Rs. 500. There was no direction for it. It follows that the constable interpreted the direction in the warrant to be the direction to obtain surety bond according to the usual practice when an arrested person is released on bail. Ram Sarup by executing the surety bond also seems to have accepted the position that he was just standing as a surety and not that he was becoming the physical custodian of Mt. Katori. It follows, therefore, that the rights of Ram Sarup with respect to the movements of Mt. Katori would be no greater than the rights of an ordinary surety with respect to the person arrested and which rights we have indicated above. In fact the rights of Ram Sarup would have been less, as he stood surety not only without the consent of Mt. Katori but in spite of he unwillingness to be released on his executing the surety bond and on her being delivered to him. The basis for the slight control which by virtue of his position a surety may exercise over the movements of the person arrested is missing in the present case. It is argued for the appellants that there is no contract between the person arrested and the surety. It is true in the sense that they do not execute any contract in favour of each other. We have indicated the nature of the transaction and the basis of a person's offering himself as a surety for another to be the desire of the other for his doing so. The cases reported in Abdul Aziz v. Emperor : AIR1946All116 and Nisar Ahmad v. Emperor : AIR1945All389 merely hold that the liability of a surety is independent of the liability of the person arrested in case the person arrested had failed to appear according to the terms of the bonds. That is a different question. The liability to the penalty under the bond is on account of the bond executed by the surety. No such bond is executed by the surety in favour of the person arrested or by the person arrested in favour of the surety. We are, therefore, of opinion that Ram Sarup had no right to restrict the movements of Mt. Katori in any way.
11. Even if the fact of Ram Sarup's standing surety for Mt. Katori without her consent be deemed not to make any difference to the rights of a surety who stands as surety with the consent of the person arrested, we are of opinion that his conduct in the present case far exceeded the normal right of a surety to exercise control over the movements of the person arrested and for whose appearance he stands surety. In the present case, Ram Sarup and Chhotey Lal forcibly took away Mt. Katori to their house and kept her there and took no steps to inform the Court concerned about the facts. It was open to Ram Sarup to refuse to stand surety the moment he found that Mt. Katori was not willing to go with him. Even if he had executed the surety bond, he could have at once withdrawn it and told the police that he was not willing to act as a surety when Mt. Katori was not willing to go with him. He could have informed the Court at once that he having stood surety had to use force to bring Mt. Katori to his house and that, therefore, suitable orders about her custody be passed. He was not entitled under the law to take her forcibly to his house and to keep her confined till the other party set the law in motion. He was of course not justified in putting Mt. Katori at the disposal of Chhotey Lal, even though Chhotey Lal was his relation. We are decidedly of opinion that Ram Sarup acted) beyond his powers as a surety.
12. We are further of opinion that the conduct of Ram Sarup and Chhotey Lal had not been bona fide. We are of opinion that it was mala fide and that what they did was not under the honest belief that they had the right to act in that way on account of Ram Sarup's standing surety for Mt. Katori. Ram Sarup has stated before the Committing Magistrate that he kept Mt. Katori in his house with the motive that she might live along with Chhotey Lal as his mistress. The previous history of Chhotey Lal's attempt to get Mt. Katori strongly tends to the conclusion that Chhotey Lal obtained this warrant for the arrest of Mt. Katori not with the intention of honestly prosecuting his complaint honestly filed under Section 498, Penal Code, but with the intention of securing possession of Mt. Katori and then forcing her to submit to his will. Chhotey Lal knew that his application under Section 100, Criminal P.C., bad been rejected a few months before after Mt. Katori had denied her alleged marriage with Chhotey Lal. He knew that his previous complaint under Section 498, Penal Code, filed about three years before this incident had been dismissed. It is this intention which makes the conduct of the accused an offence under Section 366, Penal Code. They forcibly took away Mt. Katori and they had the intention that she be forced or seduced to illicit intercourse.
13. We are, therefore, of opinion that both the appellants have been rightly convicted of the offence under Section 366, Penal Code. We accordingly dismiss the appeal. The appellants must surrender to their bail and undergo the un-expired portion of their sentences.