1. This is a criminal revision case filed against the order made by the Third Presidency Magistrate, Saidapet, in M. P. No. 26 of 1955.
2. The facts are : In C. C. No. 5290 of 1953 one Baghwandass Bansal and two others were charged under Sections 420 & 34, I. P. C. This Bhagwandass was produced before the third Presidency Magistrate to take his trial. He was directed to be released, on bail on executing a bond for a sum of Rs. 1,000, with one surety for a like sum. One M. S. Rangarathnam, the petitioner before us, offered himself as a surety and tendered Rs. 1000 in cash as surety amount.
It was accepted by the magistrate and the bond executed was to the effect that this Rangarathnam bound himself as surety for the above named Bhagwandass to attend before the Third Presidency Magistrate at Saidapet at 11 a.m. on 19-3-1954 to answer to the charge on which he has been arrested and shall continue so to attend until otherwise directed by the court and in case of his making default, to forfeit to the State the sum of Rs. 1,000. This case was subsequently transferred by the order of the Supreme Court to be tried by the Chief Presidency Magistrate, Calcutta.
The accused did not appear in Calcutta and notice issued for his presence by the Chief Presidency Magistrate, Calcutta, was returned unserved. Therefore, that Chief Presidency Magistrate addressed the Third Presidency Magistrate, Saidapet, calling upon him to cause the production of the accused or take action against the surety. Therefore, notice was issued under Section 514 Cri. P. C. and the surety appeared arid contended that by reason of the transfer he was not bound to produce the accused and the bond should not be forfeited.
He took time, however to produce the accused who was stated to be at Hatras, Aligarh, but jailed to do so. Therefore, the Third Presidency Magistrate proceeded with his proceedings under Section 514 Cri. P. C. and forfeited the bond. Hence this ' revision case.
3. The provisions of Section 514 Cri. P. C. apply to all bonds whether executed by principals, sureties or witnesses for appearance in court. 'Ananthacharri v. Ananthacharri ILR 2 Mad 163 (A),' The provisions of this section indicate that two steps are to be taken : first, it must be proved to the satisfaction of the court that the bond has been forfeited, whereupon the court is to record the grounds of such proof; secondly, the court on being satisfied as aforesaid, may call upon the person bound by such bond to pay the penalty therefor, or to show cause why it should not be paid. Manmohan v. Emperor : AIR1928Cal261 .
A surety bond in criminal cases must be strictly construed and a surety cannot be required to pay the amount of his bond as the result of an opinion held by a court, as to what was in his mind when he signed it, He can be required to forfeit the amount only if the terms expressed in the bond are broken. Nga Potin v. Emperor 33 Cri LJ 68 : AIR 1922 Upp Bur 8 (C); Vithaldas V. Emperor AIR 1932 Bom 290 (D), Maung Nge v. Emperor 26 Cri. LJ 389 : AIR 1925 Rang 153 (E).
4. It is now settled that the word 'court' includes the successor of the Judge or Magistrate by whom the bond was taken or before whom the bond for appearance had been executed. Thus, where owing to change in the law the court of a magistrate ceases to exist and all cases before it were transferred to the court of another magistrate, it was held that the latter could proceed under Section 514 Cri. P. C. in respect of a bond for appearance before the former magistrate : Mustaqimuddin v. Emperor : AIR1926All297 .
5. Bail proceedings are special proceedings about which there are specific directions in the Code and they must be strictly followed. Section 499 Cri. 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 BO. It is not open to courts to depart from these express provisions.
6. Section 514 Cri. P. C. also indicates that the place of appearance must be expressly stated in the bond. It deals with two positions. The first is when a bond is taken by a court for appearance, not before a court, but elsewhere. In that case certain courts alone have jurisdiction to determine whether the bond has been forfeited. The second is where the bond is for appearance before a court, and in that case only the court before whom appearance is to be made can determine whether the bond has been forfeited or not. It is clear that this provision cannot be satisfied unless and until the court before whom the appearance is to be made is expressly stated in the bond,
7. In this case the surety has bound himself to produce the accused before the Third Presidency Magistrate on 19-3-1954 and shall continue to produce him until otherwise directed by the court. Therefore, the question is, do the terms of this bond cover a case of production of the accused after the case had been transferred to the Chief Presidency Magistrate's Court, Calcutta?
8. The point taken is covered by authority. In Hemlal Genguly v. Emperor : AIR1934Cal101 , it was held that there is no breach of the conditions of the bail bond, if the surety has failed to produce the accused in one court and the case is transferred to another, unless from the language used in the bond, the surety has bound himself to be liable even on such transfer and that when bond ceases to exist, it does not revive, even if the case is retransferred to the former court. Shamsuddin Sirkar v. Emperor ILR 30 Cal 107 (H) relied on.
In Emperor v. Chintaram 38 Cri LJ 100 : AIR 1936 Nag 243 (I), it was held:
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 determined by the language used in the bond itself.
What the surety thought or did not think is immaterial, and it is not for a surety to show that the bond is illegal, but for the State to show that the document it wishes to enforce against him is one which can be so enforced under the law.
ILR 30 Cal 107 (H) and AIR 1925 Rang 153 (E), relied on.
In Ballabh Das v. Rex : AIR1950All667 , the facts were : The applicant had executed a surety bond undertaking to produce the accused who was on trial, in court whenever called upon to do so during the pendency of the case, which had been started by the State against him, and in the event of his failure to do so to pay the specified amount to the State. The bond was executed while the ease was pending in the court of the City Magistrate. The case was subsequently transferred to the Judicial Magistrate,
The surety having failed to produce the accused in the Judicial Magistrate's Court when called upon to do so, the Magistrate treated the bond as forfeited and under Section 514 Cri. P.C. ordered him to pay the penalty. It was held : (i) that there was nothing in the bond to show that the surety had undertaken to produce the accused only in the City Magistrate's court and in terms of the bond he was bound to produce him in the Judicial Magistrate's court as well.
That being so, there was forfeiture of the bond and the surety became liable to pay the penalty; (ii) that the contract really was between the State (not the court) and the surety, and (iii) that in the circumstances of the case, the jurisdiction of the Judicial Magistrate to take action under Section 514 was not barred.
In Bhoop Singh v. State of Madhya Bharat : AIR 1954 Mad 8 (K), it was held that where a security bond is given for attendance and production of the accused in a particular court only, the liability of the surety comes to an end, when the case is transferred to another court and that in such a case the bond cannot be forfeited for failure of the accused to appear before transferee court.
Beaumont C.J. in a Division Bench case reported in Ballabdas Motiram v. Emperor AIR 1943 Bom 178 (L) has taken a similar view. In Lokenath v. Abaninath : AIR1934Cal102 , the same view has been followed as expressed in Nagpur and Bombay cases referred to above.
In this Court in, in the matter of P. Mangayya, Cri. R. C. No. 935 of 1950 (Mad) (N) the point that fell to be considered was whether, when three persons gave a surety bond for the production of two accused before the Second Class Magistrate, Eluru, and before any other Magistrate to whom the case may be transferred, and the case was transferred to the Honorary First Class Magistrate and then to the Sub Divisional Magistrate, Eluru, and the later ordered the forfeiture of the bail bond to an extent of Rs. 100 each, this was permissible.
Somasundaram J. held that the terms of the bond had made it clear that the sureties have bound themselves for the appearance of the accused not only for their appearance before the Stationary Sub Magistrate, Eluru, on a particular date but also for continuance of their appearance in court and that 'appearance in court' meant to whatever court the case was transferred and that therefore the order of forfeiture was right.
The learned Judge suggested that it would be better if a clear and specified term is introduced in the form of bond so as to bind the accused and the sureties for appearance before any court to which the case may be transferred or committed or records sent under Section 349 Cri. P. C. Therefore the full High Court considered the matter on the administrative side and recommended to the Government that the Form in use may be suitably amended by adding the words 'or any other court to which the case may be transferred,'
This was approved by the Government and in exercise of the powers conferred by Article 227 of the Constitution of India and of all other powers enabling the Governor of Madras, Form Nos. 46 and 105 contained in Part IV of the Criminal Rules of Practice and Orders, have been suitably amended in G. O. Ms. No. 2586 (Home Dept) dated 17-7-1852.
It is unfortunate that notwithstanding this amendment the Third Presidency Magistrate seems to have used only the old form with the consequent result that it is now found that the bond executed by this surety does not cover the case of a transferee court and the further procedure prescribed viz., 'when the case is transferred to another court, the court from which the case is transferred shall inform the accused and the sureties of such transfer.'
9. The net result of this analysis is that when 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.
10. Therefore, the order of the learned Third Presidency Magistrate cannot be upheld and it is set aside. If the penalty had been realised, it shall be refunded to this surety.