1. This revision has been filed by one Nisar Ahmad against whom proceedings under Section 514, Criminal P.C. have been taken by the learned Sub-Divisional Magistrate, Sadar, Gorakhpur. Karam Ali, his wife Shamsunnisa, and Sita Ram were sent up for trial on a charge of theft and of having received stolen property. It is difficult now to find out in which Court this case was pending. It was probably before the Sub-Divisional Magistrate, in the district of Gorakhpur. The accused had been released on bail. Tilak and Sudama were sureties for Karam Ali and Abdul Razak was surety for Shamsunnisa. Tilak and Sudama applied on 22nd September 1943 for the cancellation of the surety bond executed by them. It is mentioned in the affidavit filed by Nisar Ahmad that this application for cancellation of the surety bond was not placed before Mr. H. A. Siddiqi, Sub-Divisional Magistrate, who was seized of the case but before another Magistrate who passed the following order: 'Submitted. Cancelled.' The application itself was not addressed to any particular Court, but the heading merely was 'Ba Adalat Faujdari'. The provisions of Section 502, Criminal P.C. were not followed, and the Magistrate did not issue any warrant for the arrest of Karam Ali, nor did he call upon him to find other sufficient sureties. It is suggested that Karam Ali even before 27th September had absconded. Shaina, the brother of Karam Ali, and Mohamad Zaki, a petition-writer, are said to have approached Nisar Ahmed on 26th September 1943 and his signature was obtained on an application to stand surety for Karam Ali in place of Tilak and Sudama, the previous sureties. This application was put up before the same Magistrate who had passed the previous order dated 27th September and he on 29th September 1943 passed the following order on this application: 'Shamil misil rahe.' On 9th October 1943 the Sub-Divisional Magistrate transferred the case to the Court of one Mr. B. B. L. Mathur, Magistrate, First Class. On 27th October 1943, a notice was issued to Nisar Ahmad to produce the accused in Court on 4th November 1943. On that date the accused did not appear and a notice was issued to the applicant to show cause why the bond executed by him should not be forfeited. It does not appear from the record how the case came back to the Sub-Divisional Magistrate, but the Sub-Divisional Magistrate passed an order on 22nd December 1943 that Nisar Ahmad shall pay Rs. 250 as penalty under Section 514, Criminal P.C. and if this amount was not deposited by 29th December 'warrants of attachment of property' shall be issued. Nisar Ahmad filed a revision against the order before the learned Sessions Judge of Gorakhpur, but the revision was dismissed on 9th August 1944. It is against that order that a further revision has been filed in this Court.
2. The first point taken on behalf of the applicant is that he filed the application before the Magistrate offering to stand surety for Karam Ali, but his application was attached with a blank printed form prescribed by the Criminal Procedure Code (Sch. 5, Form No. 42). This printed form has on one side a bond to be executed by the accused and on the other side the bond that has to be executed by the surety. It is suggested that the idea was that after the order of the Magistrate the form would be duly filled in by the accused. This blank printed form was not filled in and it is still attached to the application tiled on or about 27th September 1943. It is argued by learned Counsel appearing for the applicant that as there was no bond taken from the accused, the bond executed by the surety was invalid and was not enforceable. Reliance is placed for that proposition on a ruling of this Court reported in Brahmanand Misra v. Emperor : AIR1939All682 . In that case Mulla J. held that Section 499, Criminal P.C. contemplated that there should be a bond executed by the accused and the law did not contemplate any person being released on bail without executing a bond himself merely upon an undertaking or security given by a surety and that where the accused has not executed a bond, the bond executed by the surety, according to his Lordship, was not a valid bond and was not enforceable. In support of this proposition reliance is also placed on a decision of the Lahore High Court reported in Wadhawa Singh v. Emperor ('28) 15 A.I.R. 1928 Lah. 318 where Zafar Ali J. held that there could be no surety without a principal and where therefore no undertaking had been given by the person arrested to appear when called upon to do so, it was not possible for any person to declare himself surety for his appearance. This view was, however, dissented from by Skemp J. in Indar v. Emperor ('40) 27 A.I.R. 1940 Lah. 339.
3. I am bound by the decision of this Court in Brahmanand Misra v. Emperor : AIR1939All682 and if I were not in favour of the applicant on other points, pressed by learned Counsel, I may have found it necessary to refer this case to a larger Bench as with great respect and with a certain amount of ' diffidence, I do not feel inclined to agree with the view expressed in that ease. I am aware of the fact that that decision is by a learned Judge, who has great experience in criminal cases. It is no doubt true that Section 499, Criminal P.C. requires that the accused should execute a bond for such sum of money as the police officer or the Court, as the case may be, thinks sufficient and if he is released on bail then a bond has to be executed by one or more sureties. The section clearly contemplates two bonds, one by the accused and another by the surety or sureties. The form prescribed by the Criminal Procedure Code in Schedule 5 Form No. 42, also clearly shows that there have to be two bonds, one executed by the accused and the other by the surety, but, to my mind, in a case of this nature the obligation undertaken by the surety is entirely independent. It cannot be said, as has been said by Zafar Ali J., that the accused is the principal and the other person is the surety. The Court may require the accused and the sureties to give bonds for different sums. When, therefore, an accused person has been released on bail merely on the undertaking of the surety and 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 on the date or dates mentioned in the bond.
4. There may be cases where the accused person is incapable of executing a bond, and prior to the amendment of Section 514, Criminal P.C., in cases where minors were accused, the bond could be taken only from the surety and I do-not think it was possible then to hold that an accused could not be released on bail either because he could not execute a bond or the surety was not liable because there was no bond from the accused. It was not till 1923 that Section 514B was added to the Criminal Procedure Code which provided that any Court or officer may accept, in lieu of a bond executed by a minor, a bond executed by a surety or sureties only. At this stage, learned Counsel appearing for the Crown cited before me a decision of Bajpai J. in Reoti Prasad v. Emperor : AIR1934All1046 . This again is a decision of a learned Judge who had great experience in criminal cases, and I am relieved to find that his Lordship took the same view as I have taken above and held that even if there was no bond executed by the accused the surety was not discharged from his liability and the bond executed by him was not invalid on that account. On this point, therefore, I agree with the decision of Bajpai J., and hold that the bond executed by Nisar Ahmad was not invalid because there was no similar bond executed by the accused.
5. The next point-taken by learned Counsel for Nisar Ahmad is that the bond was not executed in favour of His Majesty the King. Emperor of India nor did it mention the Court before which the accused was to be produced or the date on which he was to be so produced. Learned Counsel has again relied on certain observations made in Brahmanand Misra v. Emperor : AIR1939All682 referred to above. I have looked into the bond. It is drafted in a most slovenly manner, but it can be implied from it that it is in favour of 'Sarkar Bahadur' which, I take, stands for His Majesty the King Emperor of India. As regards the Court all that the heading says is 'Ba Adalat Faujdari' and as regards date it is mentioned that the accused would appear on all dates. To my mind, learned Magistrates should take a little more care, and when these bonds are produced before them it is their duty to see that the bond complies with the requirements of Section 499, Criminal P.C. I am however inclined to agree with the learned Deputy Government Advocate that when the application was tiled in the Court of the Magistrate, where probably the case was pending, the intention was to produce the accused in that Court, and as pro-bably there was no date fixed for the hearing of the case the surety could not mention anything more than this that he would produce the accused on all dates or, to be more accurate, on such dates when he may be required to produce him. The fatal defects, however, to my mind, are the objections taken on behalf of the applicant that there was no personal liability in this bond and all that the applicant purported to give was his house in security. Section 514, Clause (2), Criminal P.C. makes it quite clear that what the law contemplates is a personal bond on behalf of the surety and when the bond is forfeited and the penalty is not paid the Court may proceed to recover the amount by issuing a warrant for attachment and sale of the moveable property belonging to such person. If security of immovable property is given, then the bond has to be registered under Section 17, Registration Act. An unregistered bond cannot affect any immovable property and must, therefore, be invalid. So far as I can see, there is no personal liability or undertaking given by the applicant; he only purported to give his house, described in the bond, in security to the extent of Rs. 250.
6. The next objection which, to my mind, is again fatal to the case for the prosecution, is that the only order passed on this bond was 'Shamil misil rahe.' As I have already stated above, the former sureties were discharged on 27th September by a Magistrate other than the Magistrate who was seized of the case by an order 'Submitted. Cancelled' without any regard to Section 502, Criminal P.C. Learned Magistrates who deal with these cases must be very familiar with the provisions of the Code, as such cases probably come up before them every day. It does not redound to their credit that they should pass such slovenly orders and disregard the provisions of the Code with which they have to deal almost every day of their life. The learned Magistrate in this case passed an equally slovenly order, when he said, that the application may form a part of the record. Learned Counsel is justified in arguing that the bond was never- accepted by the Court and there is nothing to show that the accused was released on bail on the surety given by the applicant. In this view of the matter, I allow this revision, set aside the orders of the Courts below and direct that the money, if realised from the applicant, shall be refunded.