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Chhaganlal Kikabhai Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1969CriLJ1164; (1968)GLR983
AppellantChhaganlal Kikabhai
RespondentState of Gujarat
Cases ReferredBhalu v. State of Punjab
Excerpt:
- - therefore, the present case is governed by the provisions of the latter part of section 514 because the surety was directed to produce magan bhikha before the court by the police station officer and he failed to do so. ..the language is perfectly clear: the power to forfeit and the imposition of the penalty provided for in the later parts of the section arise only if the preliminary conditions are satisfied. , and the learned trial magistrate bad jurisdiction to pass the order under said section. it is again well established that a surety bond which is penal in its nature should be strictly construed......85(1)(2) of the bombay prohibition act. on march 19, 1962, the police head constable took a surety bond, from the petitioner which is in the following terms:i, chhaganlal kikabbai resident of village bhatha, taluka gandevi is required to give a surety bond. i. therefore, bind myself that magan bhikha shall attend wherever called upon, and on such dates of the month and year as may be directed, by the billimora police station officer and shall continue to so attend until otherwise directed by the said police officer. in case of making a de. fault in that respect, i bind myself to pay a penalty of rs. 200/- rupees two hundred only, to the bharat government. the bond was signed by the petitioner in the presence of the police head constable in charge of the billimora police station......
Judgment:
ORDER

A.D. Desai, J.

1. This is a Criminal Revision Application filed by one Chhaganlal Kikabhai, who stood surety for one Mangan Bhikka who was arrested by the police head constable, Billimora Police Station on March 18, 1962, for having committed an offence under Section 85(1)(2) of the Bombay Prohibition Act. On March 19, 1962, the Police Head Constable took a surety bond, from the petitioner which is in the following terms:

I, Chhaganlal Kikabbai resident of village Bhatha, Taluka Gandevi is required to give a surety bond. I. therefore, bind myself that Magan Bhikha shall attend wherever called upon, and on such dates of the month and year as may be directed, by the Billimora Police Station Officer and shall continue to so attend until otherwise directed by the said police officer. In case of making a de. fault in that respect, I bind myself to pay a penalty of Rs. 200/- Rupees two hundred only, to the Bharat Government.

The bond was signed by the petitioner in the presence of the Police Head Constable in charge of the Billimora Police Station. As Magan Bhikha was found absconding, a notice was issued by the Judicial Magistrate, First Glass, Gandevi to the petitioner to produce him in the Court. The Police Head Constable, Billimora submitted a report that the petitioner stated to him that he did not stand surety for the accused and he did not know him, The learned Magistrate thereafter examined the Police Head Constable on August 23, 1SG6 who deposed that on March 19, 1962 he was the officer in charge of the Police Station and the present petitioner had executed the surety bond. In view of this evidence of the Police Head Constable, the learned Magistrate issued a notice against the surety as to why the amount of Ra. 200/- should not be recovered from him. In response to this notice the surety appeared and filed an application that Magan Bbikha was asrving in the Gaiyekwad Mills Billimora and requested for time to give reply to the notice. On September 14, 1966, the petitioner filed and there application stating that he did not etindeurety for Magan Bhikha and the notice issued against him should be discharged. The learned Magistrate, thereafter heard the petitioner and ordered to issue an attachment warrant to recover the amount of Ra. 200/- from him. Being aggrieved by the said order, the petitioner filed a Criminal Appeal No. 48 of 1967 in the Court of Sessions Judge, Bulear. The said appeal was allowed by the learned Sessions Judge and the order passed by the learned Magistrate was set aside and the case was remanded to the trial Court for disposil according to law. The reason for setting aside the order was that the evidence of the Police Station Officer was not recorded in the presence of the surety. On remandi the learned trial Magistrate examined the Police Station Officer in the presence of the petitioner. The petitioner was also given an opportunity to cross-examine him. The learned Magistrate thereafter considered the evidence on the record and issued attachment warrant to the Police Sub-Inspector, Billimora, to recover the sum of Rs. 200/-from the-surety within 7 days. Being aggrieved by the order the petitioner preferred a Criminal Appeal No. 3 of 1967 in the Court of Sessions Judge, Bulaar at Navsari. The said appeal was heard by the learned Session Judge who was pleased to dismiss the same. It is against this order that this revision application is filed by the petitioner.

2. Mr. Shethna appearing for the petitioner contended that the order for recovery of Rs. 200/. from the petitioner was passed under Section 514 of the Criminal Procedure Code but the said section was inapplicable to the facts of the present case. The argument of Mr. Shethna was that the bond was taken by the Police officer and not by the Court, and therefore, the provisions of Section 514, Criminal Procedure Code were not applicable and that the said order passed by the learned Magistrate was without jurisdiction.

3. Now Sub-section (1) of Section 514 of the Criminal Procedure Code reads as under: --

Whenever it is proved to the satisfaction of the Court by which a bond under the Code has been taken, or of the Court of Presidency Magistrate or Magistrate of the first class, or, when the bond i9 for appearance before a Court, to the satisfaction of such Court.

That such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.

This section lays down the procedure for the forfeiture of bonds. It deals with two Glasses of bonds; first class is when a bond under this Code has been taken by any Court, and then it is that Court alone or the Court of the Presidency Magistrate or a Magistrate of the first class that can initiate the proceeding under the section; and the second class, iswhen a bond is for appearance in a particular Court and then it is only that Court which can start a proceeding for forfeiture. The bonds of the second class will include those taken by the police officer for appearance before a Court, In the present case the bond was for appearance of the accused Magan Ehikha and was taken by the Police Station Officer. The petitioner stood surety and gave on undertaking that Magan Bhikha would attend whenever and wherever called upon by the Police Station Officer. Therefore, the present case is governed by the provisions of the latter part of Section 514 because the surety was directed to produce Magan Bhikha before the Court by the Police Station Officer and he failed to do so. It is evident, therefore, that the learned trial Magistrate had the jurisdiction to pass the impugned order under 3. 514 of Criminal Procedure Code. The contention of Mr. Shethna that the provisions of Section 514 of the Criminal Procedure Code are inapplicable to the facts of this case and that the impugned order is without jurisdiction is rejected.

4. Mr. Shethna further relied on the judgment of the Supreme Court in Rameshwar Bhatia v. State of Assam : 1953CriLJ163 and particularly relied on the following observations in the said judgment:

The High Court was in error in thinking that Section 514, Criminal P.C. applied. Action could be taken only when the bond is taken by the Court under the provisions of the Code each as Section 91 for appearance, the several security sections or those relating to bail....

The language is perfectly clear: the power to forfeit and the imposition of the penalty provided for in the later parts of the section arise only if the preliminary conditions are satisfied.

In order to understand the said observations it is necessary to consider the facts of that case. The facts were that one Rameshwar Bhatia, a shop-keeper, was in possession of food grains in excess of the quantity permitted by the Assam Food Grains Control Order, 1947. The shop was raided and the Procurement Inspector allowed the stock of paddy with Rameshwar Bhatia under a security bond by which an undertaking was taken from Rameshwar that the seized paddy would be produced before the Court. The bond was executed in favour of the Procurement Inspector. Rameshwar was subsequently unable to produce the paddy before the Court as the whole of it was taken away by a Congress M. L. A. for affording relief to those who suffered in the earthquake. Rameshwar was ordered to procure a similar quantity of paddy after taking an appropriate license, and to make over the same to the procurement department. Against this order a reference was made to the High Court under Section 438 of the Criminal P.C., for enhancement of sentence by the District Magistrate. The reference was accepted by the High Court and the sentence was enhanced. As regards the security bond the case was remanded to the trial Court for taking action according to Section 514 of the Criminal P.C., for its forfeiture. Against the order of conviction and the order of remand an appeal was filed in the Supreme-Court. Their Lordships held that the provisions of Section 514 of Criminal P.C., were inapplicable because the bond was given to the Procurement Officer. It is in light of these facts that their Lordships held that the action could be taken under the provisions of Section 514V of Criminal P.C., only when the bond is taken by the Court. The only thing that was. decided by the Court was that when the bond was for production of the property and executed in favour of the Procurement Officer: the provisions of Section 514 of the Criminal P.C., could not apply. The Supreme Court did not purport to lay down that when a bail bond is for the appearance of the accused and is taken by a police officer under the provisions of the Criminal P.C., the bond cannot be forfeited under Section 514 of the Criminal Procedure Code. It is clear, therefore, the aforesaid observations in Rameshwar Bhatia's case : 1953CriLJ163 (Supra) can be of no help to Mr. Shethna. As already stated in the present case the bond was for appearance of the aeonsed and was governed by the latter part of Section 514 of the Criminal P.C., and the learned trial Magistrate bad jurisdiction to pass the order under said Section.

5. The aeoond contention of Mr. Shethna was that the bond was vague as it did not mention the place where Magan Bhika had to attend whenever called upon by the Billimora Police Station Officer. The argument was-that the provisions of Section 499, Criminal P.C., required that it should be specifically stated-in the surety bond that the accused should remain present at a particular place. In other words the place where the accused is required; to be present should be specified in the bond. In the present case it is mentioned in the surety bond that Magan Bhikha had to remain present wherever Billimora Police Station Officer directed him to do so, and therefore, no specific place was mentioned in the bond as to where Magan Bhikha was required to attend. The provisions of Section 499, Sub-section (1) real as under :--

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 executed 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 directed by the police officer or Court, as the case may be.

The provisions requiring the mentioning of the place where the accused has to remain present is an essential requirement of the Section. It is again well established that a surety bond which is penal in its nature should be strictly construed. The 'Shorter Oxford English Dictionary' defines the word: 'mention' as meaning ''to specify by name or otherwise in words'. Therefore, when it is stated in the surety bond that person has to remain present at the wishes of the pi lice, it cannot be said to be a bond in accordance with the provisions of Section 499, Criminal P.C. The provisions of Section 499 so far as the mentioning of the place where the accused is required to remain present are mandatory,

6. Mr. Shethna relied on the decision in the cage of Bhalu v. State of Punjab , where it has been held that where a surety bond is for attendance of a person at the wishes of the police, the bond is defective and the order for forfeiture and for payment of penalty is illegal. The bond in the present case when it directs that Magan Bhikha has to remain present wherever called upon by the Police Station Officer is vague and defective in that respect. I, therefore, set aside the order passed by the learned Magistrate forfeiting the bond and ordering the recovery of Rs. 200/- by attachment of the property of the petitioner.

7. The result is that the revision application is allowed. Orders accordingly.


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