1. This second appeal by the State of Punjab is directed against the judgment and decree of learned District Judge, Hoshiarpur, whereby he accepted the appeal of Dev and Duni Chand respondents, and reversed the decision of the trial Court granting a decree for recovery of Rs. 5,000/- in favor of the State of Punjab against Dev and Duni Chand.
2. The brief facts of the case are that Dev was convicted in a case under Section 302, Indian Penal Code, and was sentenced to undergo transportation for life. The order in this respect was made by the Sessions Judge on October 3, 1948. The appeal filed by Dev was dismissed by the High Court on December 10, 1949. After Dev had served a sentence of about six years, the Governor of the Punjab in exercise of the powers conferred by Section 401 of the Code of Criminal Procedure remitted the unexpired portion of his sentence and directed Dev to be released on his furnishing security in the sum of Rs. 5,000/- with one surety in the like amount for keeping good behavior for the period equivalent to the unexpired portion of his sentence. It was also to be provided in the bond that Dev would surrender whenever called upon to do so during the above-mentioned period. Dev executed the requisite bond in the sum of Rs. 5,000/- on May 25, 1954. His brother Duni Chand stood surety for him. The bonds executed by the two brother were accepted by Additional District Magistrate, Kangra, on May 31, 1954. Dev was thereforee released from Central Jail, Ferozepur, on June 2, 1954. The Governor of the Punjab subsequently cancelled the remission of the unexpired portion of the sentence of Dev appellant on the ground that Dev had started his nefarious activities in violation of the terms of the bond. Report to that effect was made by the Superintendent of Police and the District Magistrate. Dev was thereafter re-arrested on July 11, 1957, and was put injail to undergo the unexpired portion of his sentence. The Additional District Magistrate, Kangra, thereafter called upon Dev and Duni Chand to pay the amount of bonds. Buring the course of those proceedings the Additional District magistrate came to the conclusion that the bonds were not covered by Section 514 of the Code of Criminal Procedure and that the only remedy for the State was to file a suit in a Civil Court. The State of Punjab thereupon filed the present suit for recovery of Rs. 5,000 against Dev and Duni Chand respondents.
3. The suit was resisted by the two defendants. They pleaded that the bonds were inadmissible in evidence; that the suit was barred by time and that the bonds were legally not enforceable. Pleas were further taken that Dev had remained of good behavior and had not indulged in any nefarious activity. According to the defendant the persons, whose son had been murdered, had made false application to the police against Dev. According further to the defendant the forfeiture of the bonds was not justified.
4. Following issues were framed in the case:-
1. Whether the suit is barred by time?
2. Whether the document requires stamp?
3. Whether the document is not enforceable according to law?
4. Whether defendant No. 1 has not complied with the conditions of the bond?
5. In case issue No. 4 is proved, whether defendant No. 2 is not liable as surety to pay the amount in suit?
5. The trial Court decided issues 1, 2 and 3 against the defendants. It was furtehr held that Dev defendant has not complied with the conditions of the bond inasmuch as he had not kept good behavior after his release. Decree for recovery of Rs. 5,000/- was awarded against the defendants. On appeal the learned District Judge considered the terms of the bonds and came to the conclusion that the undertaking under the bonds was that Dev wouldmaintain good behavior and that in case a demand to that effect was made he would present himself before the appropriate authority. It was only in case he made a default in this respect that he and his surety were to be liable to pay Rs. 5,000/-. The learned District Judge then went into the question as to whether Dev had committed breach of the terms of the bonds and came to the conclusion that there was no disinterested evidence to show that Dev had so conducted himself as to merit the penalty provided for in the bonds. The appeal was, accordingly, accepted and the suit of the Punjab State was dismissed.
6. I have heard Mr. Malhotra on behalf of the appellant and Mr. Nag on behalf of the respondents and am of the view that there is no merit in the appeal. Perusal of the judgment of the learned District Judge shows that he considered the evidence which had been adduced on the record and came to the conclusion that there was no disinterested evidence to prove that Dev had misconducted himself so as to justify the imposition of penalty. Issue No. 4, ws consequently decided against the plaintiff-appellant. The finding of the learned District Judge in this respect was essentially one of fact and as it was based upon consideration of the evidence adduced in the case it cannot be interfered with in second appeal.
7. Mr. Malhotra on behalf of the appellant has referred to the provisions of Section 401 of the Code of Criminal Procedure which deals with the power of the appropriate Governemnt to suspend or remit the sentence. Sub-section (3) of that Section, upon which reliance has been placed on behalf of the appellant, reads as under:-
'(3) If any condition on which a sentence has been suspended or remitted, is, in the opinion of the appropriate government not fulfillled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favor the sentence has been suspended or remitted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence.'
Perusal of the above sub-section goes to show that if the appropriate Government is of the opinion that any condition on which a sentence has ben suspended or remitted is not fulfillled. The said Government may cancel the suspension or remission and thereupon the person in whose favor the sentence has been suspended or remitted may, if at large, be arrested by any police officer and remanded to undergo the unexpired portion of the sentence. It would follow from the above provision that the only effect of the formation of the opinion by the Government referred to in sub-section (3) is that the person concerned can be arrested and remanded to undego the unexpired portion of the sentence. It cannot be inferred from the above provision, as is contended on behalf of the appellant, that once the appropriate Government forms the opinion that there has been a breach of the condition on which a sentence was suspended or remitted its opinion is binding upon the Civil Court in a suit brought for the recovery fo money on the ground of the alleged breach of the terms of the bond. The plaintiff appellant in the present case seeks to fasten a pecuniary liability on the defendant-respondents and it would, in my opinion, have to be proved independently in these proceedings that there has been a breach of the terms of the bonds which were executed by the defendants. The opinion of the State Government can be no substitute for a finding of the Civil Court regarding the alleged breach of terms of the bond in a suit for recovery of money on the basis of the said bond. As the learned District Judge has arrived at the finding that the plaintiff has failed to prove any such breach of the terms of the bonds, there is no escape from the conclusion that the plaintiff should be non-suited.
8.In the above view of the matter, it is not necessary to go into the question as to whether a pecuniary liability in the shape of payment of the amount of bonds can be fastened upon the respondents, even though Dev surrendered himself to custody. The appeal consequently fails and is dismissed but with no order as to costs.
9. Appeal dismissed.