Abdul Hakim Khan, J.
1. In the Court of the Sub-Divisional Magistrate, Gird, Gwalior, Bhoop Singh the applicant stood surety on 24-10-1950 for Girdhari Singh accused in proceedings under Section 109, Criminal P. C. for a sum of Rs. 200/-. The case was subsequently transferred by the Sub-Divisional Magistrate himself to the Court of Additional District Magistrate, Gird. The date fixed for the appearance of the accused by the transferee Court was 16-7-1952, but on that date the accused did not appear. A notice was issued to the surety to produce the accused on 12-9-1952 and also to show cause why his security should not be forfeited. On 12-9-1952 the accused appeared in the Court and the surety, in reply to the notice to show cause, applied for an adjournment because he was ill. The Court did not grant the adjournment and forfeited the security and proceeded to realise the penalty. The surety appealed against this order to the District Magistrate, who dismissed the appeal on the ground that it was time barred. Now, the surety has filed this revision before the High Court.
2. The learned Government Advocate has raised a preliminary objection to the effect that because the appeal was time barred and it was rejected by the appellate Court on that ground, the applicant should not now be accorded an opportunity to be heard in revision. In - 'Emperor v. Bankatram' 28 Bom 533 (A), it is held that the controlling power of revision of the High Court is an extraordinary power and that power should not be crystallized as it would become in course of time by one judge attempting to prescribe definite rules with a view to bind other Judges in the exercising of their discretion which the Legislature has left to them. This discretion like other judicial discretions so far as practicable be left untrammelled and free so as to be fairly exercised according to exigencies of each case. In the present revision there are two points of importance which deserve consideration.
First, when the condition in a bond is that the accused would be produced before the Sub-Divisional Magistrate, is the surety liable to produce the accused before an Additional District Magistrate, who presides over a different Court altogether?
Second, that having regard to the wordings of the bond, could the Court forfeit the bond without giving an opportunity to the surety to produce the accused on a certain date?
Before proceeding to consider these points, I must say that no hard and fast limitation can be placed on the visitatorial jurisdiction of the High Court and it must be well understood that there is no species of injustice which the High Court would be powerless to correct, where its interference is called for.
3. The surety executed the bond under Section 499, Criminal P. C, and, therefore, the provisions laid down in. Section 499, concerning the nature and condition of bail bond, should be adhered to. According to the condition, the time and place for the appearance of the accused enlarged on bail, must be put down in the bond and the surety will be held liable for producing the accused only in the place mentioned in the bond. In the bond under consideration the surety had stipulated that the accused shall attend the Court of the Sub-Divisional Magistrate, Gird and there was no condition in the bond that the surety would produce the accused before some other Magistrate. In the circumstances, it is obvious, that the obligation must be deemed to have ceased to exist on the transfer of the case to the Additional District Magistrate.
The Nagpur High Court in - 'Emperor v. Chintaram' AIR 1936 Nag 243 (B), has taken the view that where a person executes a surety bond, he undertakes to produce the accused in a particular Court; his failure to produce the accused totally in a different Court does not amount to a breach of the bond. Beaumont, C. J. in a Division Bench case reported in - 'Ballabhdas Motiram v. Emperor' AIR 1943 Bom 178 (C), has taken a similar view.
4. The learned Government Advocate has cited - 'Mustaqimuddin v. Emperor' AIR 1926 All 297 (D) in which it is held that the terms of surety bond are wide enough to include the successor Court. On the perusal of the facts of the Allahabad case, it appears that the Court before whom the accused was to appear ceased to exist in March 1924, and by a change in law, the cases of the Court which was abolished were sent to a special Magistrate for disposal. From this, it is obvious that the Allahabad case proceeds on a different basis and is distinguishable.
5. In-'Loke Nath v. Abani Nath' AIR 1934 Cal 102 (E), the same view has been followed as expressed in Nagpur and Bombay cases referred to above. Both on the ground of reason and authority, I hold that where a bond is given for attendance in a particular Court, the liability of the surety comes to an end, when the case is transferred to another Court.
6. Considering the view that I have taken of the first point canvassed before me, I think it unnecessary to decide the second point, namely, whether in the circumstances of the case, it was necessary for the Court to give an opportunity to the surety to produce the accused and on his failure to do 30 to forfeit the bond.
7. For reasons stated above, I accept the revision and set aside the order of the forfeiture of the surety bond. If the penalty has been realised, it shall be refunded to surety.