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The State of Gujarat Vs. Jethanand Kundomal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1968CriLJ1356; (1968)GLR1031
AppellantThe State of Gujarat
RespondentJethanand Kundomal
Cases ReferredDurgeah Ranjan v. Administration of Tripura
Excerpt:
- - 1,500/- with one surety for like amount for each of them in criminal case no. 1,500/- with one like surety and on his under taking to bring the necessary order from the sessions court, narol, regarding bail within a period of one month that is 30 days. 2.500/- and to execute a band for like amount before this court. 1,500 with one like surety and on his undertaking to bring the necessary order from sessions court, narol, regarding bail within a period of one month, that is 30 days. thus the order clearly indicates that the order for releasing them on bail has to be obtained from the sessions court. at the top of the bonds, as already stated here above, it is clearly shown that the bonds were provisional for one month. on their failure to do so, the deputy commissioner called upon.....ordern.g. shelat, j.1. the two accused lokumal and lilaram reside its of ahmedabad were released on bail on furnishing security in a sum of rs. 1,500/- with one surety for like amount for each of them in criminal case no. 752 of 1964, by the court of the judicial magistrate, p.c. at narol the inquiry was over on 25.1.1965 and he committed them along with two other accused to stand their trial before the court of sessions. at the time of commitment, all the four accused applied for being provisionally released on bail under section 220 of criminal p.c., so as to enable them to again an order for their release on bail from the sessions court, narol. the committing magistrate passed the order as under:each of these 4 accused is ordered to be released on furnishing a personal bond of rs......
Judgment:
ORDER

N.G. Shelat, J.

1. The two accused Lokumal and Lilaram reside its of Ahmedabad were released on bail on furnishing security in a sum of Rs. 1,500/- with one surety for like amount for each of them in Criminal Case No. 752 of 1964, by the Court of the Judicial Magistrate, P.C. at Narol The inquiry was over on 25.1.1965 and he committed them along with two other accused to stand their trial before the Court of Sessions. At the time of commitment, all the four accused applied for being provisionally released on bail under Section 220 of Criminal P.C., so as to enable them to again an order for their release on bail from the Sessions Court, Narol. The committing Magistrate passed the order as under:

Each of these 4 accused is ordered to be released on furnishing a personal bond of Rs. 1,500/- with one like surety and on his under taking to bring the necessary order from the Sessions Court, Narol, regarding bail within a period of one month that is 30 days.

In pursuance thereof, the opponent Jethanand stood surety for these two aocu3ed, and executed two separate bands in the sum of Rs. 1,500/- which are on the back of each of the bond executed by these two accused in the case. We may, however, state here that at the top of both the bonds, it has been stated that it was provisional for one month. While in the bonds executed by the accused it has been stated that within one month they would obtain orders for release on bail from the Sessions Court; in the bonds executed by the opponent-surety instead of writing one month as such, the date has been mentioned as 1.3.65 within which the order for bail from the Sessions Court would be obtained.

2. Both the accused for whom this opponent was the surety, appeared before the Sessions Court at Narol on 23.2.65 along with the other two accused Nos. 1 and 3, and had given their joint application for being released on bail during the pendency of the trial of the case in the Sessions Court. On 28.2.65, the learned Sessions Judge passed the order which runs thus:

Bail granted. Each of the applicants to furnish security for Rs. 2.500/- and to execute a band for like amount before this Court. Applicants should also present themselves at Sardarnagar police station on every Monday till final disposal of their case by this Court.

After this order was passed on 26.2.65 all the four accused had again appeared before the Sessions Court on 27.2.65 and had presented an application saying that they would be engaging their own private pleader for their defence. All of them have signed that application and that was presented by them in person before that Court, Thereafter it appears that the accused Nos. 3 and 4 did not remain present either before the Sessions Court or before the Committing Court and that fact was brought to the notice of the Committing Magistrate's Court. Two separate notices dated 18.3.65 were issued by that Court against their surety calling upon him to show cause why the bail bonds be not cancelled a ad the amount mentioned in the bonds be not forfeited and recovered from him. The surety was further directed to present himself along with those two accused Nos. 3 and 4 on 25.8 65 failing which the amount mentioned in the bail bonds would stand forfeited and necessary steps will be taken for recovering the same from him. On receipt of those two notices, the surety appeared before the Committing Magistrate on 26.3.65 and requested the Court to grant him sufficient time to enable him to take the police assistance and to get those two accused persons arrested at Kalyan and Bombay where it was learnt that they had gone away. He was, how ever granted four days time for that purpose. It appears that one of those two accused, namely. Lilaram Tahelram was traced and was arrested by the police constable at Kalyan Camp No. 2 (District Thana) on 28.3.65. Tae other one was, however, not found. Efforts were made for finding out the other accused but he could not do so. Since more than four days had already passed before he appeared before the Court, the learned Magistrate passed an orler on 30.3.66 forfeiting the bonds and directed the surety to pay the amount of Rs. 3,000 in all as per the surety bonds executed by him, within ten days from that order. Feeling dissatisfied with that order, the surety Jethanand for the two accused filed Criminal Appeal No. 46 of 1965 in the Court of the Sessions Judge at Narol. The appeal was heard by the learned Additional Sessions Judge, Ahmedabad (Rural) at Narol. The contentions raised on behalf of the accused were that the bail bonds executed by the surety appellant were illegal and ineffective inasmuch as they suffered from vagueness and uncertainty, and that the committing Magistrate's Court had no jurisdiction to take any action on the strength of those bail bonds. The learned Additional Sessions Judge, however found that the bonds had incorporated a condition about their remaining present in the Sessions Court which was not in the order, passed by the Committing Magistrate, and that way, both the surety bonds were illegal. With regard to the point of jurisdiction he found that since the bonds were taken by the commit, ting Magistrate's Court it was open to that Court to forfeit the same. In the result, therefore, he get aside the order passed by the learned Magistrate whereby the bonds were forfeited and the amount of Ra. 3,000 was ordered to be recovered from the surety. Feeling dissatisfied with that order passed on 21.6.65 by Mr. R.C. Israni, Additional Sessions Judge, Narol, the State has come in revision before this Court.

3. The material point that arises to be considered is as to whether the two bonds executed by the opponent surety are illegal and consequently unenforceable in law.

4. Now instead of taking the accused in custody on passing an order of commitment, since the application wa3 made by those accused persons for releasing them on bail provisionally, so as to enable them to obtain the order for bail from Sessions Court, the learned Magistrate directed them to be released on bail provisionally on each of them furnishing a personal bond of Rs. 1,500 with one like surety and on his undertaking to bring the necessary order from Sessions Court, Narol, regarding bail within a period of one month, that is 30 days. Thus the order clearly indicates that the order for releasing them on bail has to be obtained from the Sessions Court. Narol, and that again within a period of one month i.e. 30 days from the date on which that order came to be passed viz. 25.1-65. The bonds to be executed by the accused as also by their surety were obviously to be in consonance with the order passed by the learned Magistrate. Since the bonds were provisional and temporary - only for a period of 30 days - they cease to have any effect on the expiry of the period fixed by the Court unless extended by that Court. It was not extended and therefore the period came to an end on 24.2.1965.

5. Section 499 of the Criminal P.C., relates to the bonds to be executed by the accused and sureties in matters relating to the release of the accused on bail. This Section 499 runs thus:

499.(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be execute. ed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that' such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise director by the police officer or Court, as the case may be.

2. If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.(3) * * * * *.

The provisions contained in this section, thus, contemplate a release of any person on bail either by the police officer or the Court as the case may be. Before any such person is released on bail, a bond either of that parson alone or by one or more sufficient sureties for releasing him on bail have to be obtained. Then it contemplates certain specific conditions to be incorporated in any such bond passed by any such accused persons or their surety and those conditions are that such accused person shall attend at the time and place mentioned in the bond and shall continue a) to attend until otherwise directed by the police officer or Court, as the case may be Sub-section (2) thereof also provides for binding such persons to appear when called upon at the High Court, Court of Session or other Court to answer the charge. The forms as contemplated in Section 496 and 499 of the Criminal P.C. have been set out in Schedule V wherein all such requirements have been set out. Whatever are necessary in a given case would have to be retained and other conditions which are unnecessary or irrelevant would have to be scored out. The forms in Gujarati are used and they are printed ones. So far as the bonds executed by the accused Nos. 3 and 4 are concerned, on the front side of the form a bond of the accused person who is ordered to be released is taken and on the back of it, we find the bond executed by the surety. The two forms that we have before us read as they exist in the printed forms prepared on the basis of the form No. 42 set out in Schedule V of the Criminal P.C. They have added therein whatever certain specific requirements are to be put as per the orders passed by the Court such as the name of the accused, the offences with which he has coma to be charged, as to the Court where he has to appear and the amount of the bond that he would have to execute for remaining present in a particular Court and at a particular time. The liability of a surety depends upon the compliance of the terms set out in the bond executed by the accused person for whom he has stood surety.

6. The contention raised in respect of the bonds executed by the surety-opponent is that both the bonds executed by him as also by the accused Nos. 3 and 4 are vague and in no way clear as to the Court in which the accused has to remain present and secondly as to the date on which he had to appear before any particular Court. Not only that, but the contention further is that even if for a moment from the bonds executed by the surety and having regard to the circumstances in which the order for bail came to be passed by the committing Magistrate's Court, we were to take that the accused were required to remain present in the Court of Sessions, they had complied with that condition in the sense that they hid remained present before the period of one month i.e. 30 days as per the order passed by the learned Magistrate on their application for bail expired. At the same time, it was said that the bonk being provisional in point of time, they ceased to have any effect on the expiry of 30 days as per the order passed by the Court.

7. Now taking the Utter point first, as already stated here above, the order of 25.1.65 for releasing the accused on bail was of a provisional character and that it remained effective upto a period of 30 days within which he had to obtain an order for releasing them on bail from the Sessions Court, Narol. It is also clear that the liability of the accused, and of their surety would therefore be on the bonds executed by them as per the order of the Court and thus they can only remain effective for a specific period of 80 days before which if they intended to be continued on bail, they were required to obtain a proper order for releasing them on bail from the Sessions Court to which they were committed for trial, or that they obtained the order of committing Magistrate for extending the time. If no such time was extended, the period was to be over on 24.2.65. It is not that they did not fulfil that condition by remaining absent before my Court, though asked to remain present. Even if they were expected to remain present in 3ourt of Sessions they had remained present for presenting their application for bail on 23.2.65 is also for its hearing on 26th. They were also present in Court on 27th of February 1965. The liability cheated under the bonds, therefore, being of a provisional character and that too for a period of 30 days, would necessarily come to in end on 24.2.65 since no time was extended by the committing Magistrate's Court. In those circumstances. the accused Nos. 3 and 4 cannot be laid to have committed any breach of the condition in the bonds so as to make the surety liable, as the accused had remained absent after that period of one month was over.

8. What was, however, urged by Mr. Thakkar, he learned Assistant Government Pleader for he State, was that so far as the surety is concerned, the date mentioned in his bonds is (sic) 8-65 within which he was required to bring orders from the Sessions Court for having the accused released on bail and that therefore, he having executed the said bonds would be bound by that recital. That recital is obviously mistaken. The order passed by the learned Magistrate is clear enough to show that it was within a period of 80 days that they were required to obtain an order about their release on bail from the Sessions Court. At the top of the bonds, as already stated here above, it is clearly shown that the bonds were provisional for one month. In the bonds of accused Nos. 3 and 4 originally the date 1.3.65 was stated, and later on it has been scored out so as to bring it in consonance with the period of one month stated in the order, within which the order for bail was to be brought. The same mistake committed in stating 1.3.65 remained in the bonds executed by the surety. No correction was however made, as it should have been in these bonds. The time was given to the accused and that time would be necessarily the condition in the Bonds executed by their surety. No advantage can, therefore, be claimed by the State in respect of such a mistake committed by the office of the Court of the learned Magistrate, in allowing such mistake, to remain. To say tint upto 1.8.65 the surety was liable for the presence of the accused cannot therefore be proper, and more particularly when that statement is not is consonance with the order passed by the learned Magistrate. Anything that is mentioned in any of these bonds beyond what the Court directed in its order cannot be said to be a valid condition inserted in the bonds executed by either the accused or by their surety. The mere fact that the surety had put his signature in the presence of the Judicial Magistrate cannot be taken to mean as Mr. Motwani contended, that the learned Magistrate had changed the contents of his order go far as the surety was concerned. If that were really so, the learned Magistrate would have surely made suitable change in the order passed by him on the application for bail given by the accused in the case. That would have been again so in the bonds executed by the accused themselves. Thus the surety would become liable for the penalty under his bonds only if the accused committed breach of any valid and correct condition and not a mistaken one, as is sought to be said by the learned Assistant Government Pleader. Till 27th the accused were before the Court and their presence was not called for till that date by the learned Magistrate. No breach was therefore committed by the accused so as to render their surety liable for their absence later on i.e. after the period of one mouth was over. The bonds executed by the accused as also by their surety stand exhausted with the period fixed by the Court, expiring on 24.2.65. If the accused remained, absent they were liable to be arrested but as long as they remained present before Court of Sessions, till 27.2.1965, even of their own and not required by the Court; by reason of the Bands, no penalty can be either claimed from the accused or from their surety.

9. Taming back to the bonds there hardly appears any attempt made by the officers who prepared the bonds to score out printed Conditions or so which were either unnecessary or irrelevant with the result that the bonds remained of a very vague and uncertain character. One of the important and essential condition was as to the Court where the accused were required to remain present. The bonds refer to, in the first instance, a Court before which they were produced or some other Magistrate before whom the inquiry in respect of the charge levelled against him is to take place. Then it further refers to the Court of Sessions, if necessary, where he may be required to remain present. In other words, no specific Court where he was required to remain present has been dearly and specifically set out in any of the bonds. What was essential to be mentioned was the specific Court where the accused were required to remain present. Another difficulty which appears from the bonds is that no specific date has been mentioned therein when they were required to remain pre sent in a particular Court. It was, however, on the basis that since they were committed to the Court of Sessions, at Narol that they took it that they were required to remain present in the Court of Sessions at Narol. But there again no specific date has been given. Even then, as Already pointed out have above, they had remain, ed present for one reason or the other before the expiry of the period within which they were required to obtain an order for releasing them on bail from the Court of Sessions, at Narol. Now when the bonds suffer from such vagueness in respect of the Court where they had to appear or suffer from absence of a specific date on which they were required to remain present in any particular Court, the accused cannot be said that they knew the conditions as required to be complied with under the provisions contained in Section 499 of the Criminal P.C. I have already set out Section 499(1) of the Criminal P.C., and as provided therein, the bonds are required to set out conditions that such person i.e., the accused who is ordered to be released on bail shall attend at the time and place mentioned in the bond. The use of word 'shall' makes that requirement being of an obligatory character and non-mention of the date on which they are required to appear, and mention of more than one Court without being specific as to in what particular Court they had to appear, would render the bonds invalid and cannot be called effective in any manner so as to make the surety liable for the penalty as contemplated in hi a bonds.

10. I am fortified in the view that I take as stated above from few decisions of different High Courts. In the case of Emperor v. Chintaram 38 CriL.J. 100 : AIR 1936 Nag 248, such a point had arisen and it was held as under:

Bail proceedings are special proceedings about which there are special directions in the Code, and they mast be strictly followed. Section 499 of the Criminal P.C., states that the time and place at which the accused is to appear must be mentioned in the bond, and the second clause of that section states that if the accused is to appear in some other Court the bond must expressly say so. It is not open to depart from these express provisions. Where there is no mention in the surety bond of the Court in which the accused is to appear, the bond cannot be enforced. The fact that the surety did not produce the accused in a totally different Court, even supposing he had undertaken to produce him in a particular Court, is not a breach of the bond and the surety is not liable.

The terms of a surety bond have to be deter' mined by the language used in the bond itself. What the surety thought or did not think is immaterial, and it is not for the surety to show that the bond is illegal, bat for the Grown to show that the document it wishes to enforce against him is one which can be so enforced under the law.

Another case in that respect is one of Brahma Nand Misra v. Emperor AIR 1989 All 682, where again similar observations have been made. It has been observed as follows:

The provisions laid down in Section 499 as to nature and contents of the bail bond are imperative. It is incumbent under Section 499 to get a bond executed by the person who i3 released on bail and unless that is done there can be no valid bond by a surety alone. So also the mentioning of a definite Court before which the accused person is to appear is an essential condition of such a bond. Hence no proceedings can be taken under Section 514 on a bond executed by the surety alone and which mentions no definite Court and time before which the accused was to appear.

I may in this connection usefully refer to the decision of the Supreme Court in the case of State of Bihar v. M. Homi : 1955CriLJ1017 . In that case, the accused was convicted under Section 120B read with Section 420, Penal Code, and sentenced to four year rigorous imprisonment and a fine of rupees one lac, and he submitted to the Provincial Government a petition praying for suspension of his sentence in order to enable him to prefer an appeal against the said conviction and sentence to the Judicial Committee of the Privy Council. The Provincial Government granted the prayer subject to his furnishing security worth Rs. 50,000 with two sureties of Rs. 25,000 each to the satisfaction of the Deputy Commissioner of Singhbhum. The sureties executed a bond undertaking to pay Rs. 50,000 only in case the accused fails...to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly.' In the meantime, as a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court by virtue of the 'Abolition of the Privy Council Jurisdiction act.' The accused's appeal to the Privy Council thus got transferred to the Federal Court and in due course was heard by the Supreme Court. The Supreme Court dismissed the appeal in November 1950. In December 1950 the Deputy Commissioner of Singhbhum issued notice to the sureties to produce the accused within three days. On their failure to do so, the Deputy Commissioner called upon the sureties to show cause why their bond should not be forfeited. On those facts, the Supreme Court held that in view of the clear provision in the bond, the terms of which being penal in nature, must be very strictly construed. It odd not be said that the contingencies contemplated by the parties had occurred. There was no judgment or order of the Judicial Committee upholding either in part or in whole the sentence against the accused. As the terms of the bond so construed could not be said to have been fulfilled, the penalty stipulated had not been incurred. It must therefore be held that the proceedings taken against the sureties were entirely misconceived. The Advocate General of Bihar who appeared in support of the appeal contended that in the events which had happened there could be no judgment or order of the Judicial Committee and that therefore, the judgment of this Court, which by virtue of the constitutional changes has come by the jurisdiction vested in the Privy Council, should deemed to be the judgment or order contemplated by the parties to the surety bond. That contention was said to have no substance, firstly because, there is no term in the bond to the effect that the surety would be bound by any judgment or order given by such other court as may succeed to the jurisdiction then vested in the Judicial Committee of the Privy Council to hear the appeal preferred by AH Khan against his conviction by the Courts in India; and secondly, because there is no room, while construing the penal clause of a surety bond, for the application of a legal fiction as suggested on behalf of the appellant. Then it his been observed that the Government through their legal adviser a were not circumspect enough to insert any such alternative clause as would have given the judgment or order of this Court the same effect as is contemplated by the terms of the surety bond quoted above In other words, the bonds executed by the sureties being of a penal character have to be strictly construed. By reason of vagueness of conditions regarding time and place where they had to appear, Bonds cannot be called in consonance with the provisions contained in Section 499 of Criminal Procedure Code. They are therefore illegal and consequently ineffective against them as also against their surety.

11. It is necessary to impress upon the learned Magistrate that the bonds are got properly aid accurately written out as on that the liability to pay penalty stated therein arises towards the State. The Magistrate should always pay attention to see that the bonds are again executed as per the terms of the order passed by him and that they also comply with the requirements contemplated in Section 499 of the Criminal Procedure Code.

12. One more point was raised by Mr. Motwani, the learned Advocate for the opponent, that the only court which hid jurisdiction to forfeit the bonds was the Court of Sessions where the accused was required to remain present and not the Court of the committing Magistrate before whom the bonds were executed. In support thereof, he referred to a decision in the case of Durgeah Ranjan v. Administration of Tripura AIR 1965 Tripura 26, where it was held that under Sub-section (1) of Section 514, when the bond is for appearance of the accused before a particular Court, it is only that Court which has got power to take steps under that section. On a perusal of that -case it appears that it was the Sessions Court which had passed an order for releasing the accused on bail and that bail bond was for appearance of the accused in the Court of Sessions the bail bonds, however, were directed to be taken before the District Magistrate. Since the accused did not appear before the District Magistrate later on, the bonds came to be forfeited and the surety was called upon to pay the amount mentioned therein. In those circumstances, it was held that since the bond was for appearance before a particular Court, it was only that Courts which had got powers to take steps under that section. With that proposition of law I do not think there cm be any dispute for the simple reason that the criminal order for releasing the accused on bail was passed by the Sessions Court and it was in pursuance of the order of that Sessions Court that the bond had come to be taken by a subordinate Court such as the District Magistrate in that case. The accused was also required to remain present in the Sessions Court in pursuance of that order and in those circumstances that Court was competent to forfeit the same and order the surety to pay the penalty required thereunder. In the present case that has not been so. The bonds were not executed in pursuance of any order passed by the learned Sessions Judge at Nerol. They ware executed in pursuance of an order passed by the committing Magistrate while he directed them to be committed to the Court of Sessions. It is, therefore, clear that it was the committing Magistrate's Court which released the accused on bail and consequently it is that Court which can forfeit the bonds in case any of the conditions set out therein was not complied with. The committing Magistrate's Court was, therefore, competent enough to forfeit the bonds and issue notice to the surety for paying up the amount of penalty contemplated thereunder.

13. In the result, therefore, the revision fails and rule is discharged.


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