1. The Sub-Divisional Magistrate, Nagapattinam, by an order of his dated 25th June, i960, directed that each of the surety bonds executed by the petitioners should be forfeited. One Augustine was arrested in May 1959, and was eventually convicted of an offence under the provisions of the Sea Customs Act, and sentenced to undergo rigorous imprisonment for four months. The conviction was on 30th April, 1960. On the same day the petitioners as well as the convict executed a bail bond, the former as sureties. This bond was executed pending filing of an appeal against the conviction. An appeal was actually filed on 27-5-1960.
Thereafter on the same day,, namely, 27th May, 1960, a fresh bail bond was executed by the petitioners in which the convict did not join. The bail bond that was executed with petitioners as sureties on 30th April. I960, specifically mentioned that the convict should be produced before the Sub-Divisional Magistrate on 9th May, 1960, or on any further date as he might direct. The petitioners failed to produce the convict either on the first day just mentioned on the adjourned date, 16th May 1960. It was in such circumstances the Sub-Divisional Magistrate ordered forfeiture of the bond, for failure on tEeT5arToFJHe sureties to produce the convict as had been undertaken by them. Against the forfeiture the petitioners unsuccesfully appealed to the District Magistrate, who dismissed the appeal on 21st July, I960. The petitioners have therefore come up to this Court.
2. Three points have been urged to avoid the petitioner's liability as sureties under the bond which they had executed. Firstly, it is contended for the petitioners that the surety bond which the petitioners executed on 27th May, 1960, on which date the appeal against the conviction was filed4 Superseded in effect the earlier bond executed on 30th April, 1960, and that, therefore, no question of forfeiting the earlier bond could arise.
The fallacy in the argument is that it assumes that the default to produce the convict was under the terms of the later bond executed on 27th May, 1960. As a matter of fact the default on the part of the petitioners was in their failure to produce the convict on 9th May, I960, or on the further Sate 16th May, 1960. The bond clearly provided1 an undertaking on the part of the sureties to produce the convict on that day or on the adjourned date before the Sub-Divisional Magistrate and there can be no doubt that that undertaking was not complied with by the petitioners. The breach was therefore of the terms of the bond executed on 30tli April, 1960, and not those of the bond executed on' 27th May, 1960. It is true that the latter bond superseded the former. But that is only as from the date of the execution of the second bond, namely, 27th May, I960. The execution of the second bond does not and cannot have the effect of nullifying the effect of a breach which had already been committed of the undertaking under the bond executed on 30th April, I960. The first point is therefore without any substance.
3. Secondly, it is strenuously urged that the form of the bond executed on 30th April, 1960, was one pertaining to am appellate Court and was inappropriate to the occasion, namely, to cover the period between the date of the conviction and the date of filing the appeal. It is said that the bond was not in accordance with the prescribed form and could, therefore have no operation.
It is no doubt true, as urged for the petitioners, that the form used is one applicable to an appellate Court. Even so, I fail to see any force tai the argument that because the form is applicable to an appellate Court, there is any-thing in it which enables the petitioners to avoid the liability arising thereunder. Whatever may be the form, it is the terms Of the bond which constitute the contract and in the light of them the existence or otherwise of a liability has to be judged- The bond executed on 30th April, I960, is applicable to the Court of the Sub Divisional Magistrate, Nagapattinam. That is the heading of the form. The both then cites the number of the case in which Augustine was convicted. The name of the convict and the particulars in, relation to the offence of which he had been convicted are thereafter set out. The operative part of the bond, which is in Tamil, in substance reads.
Since Augustine has been convicted and sentenced to undergo four months' rigorous imprisonment, since he has filed the above appeal and since on 30th April, i960, he has been ordered to be released on bail, I hereby under' take to appear before the Sub-Divisional Magistrate either on 9th May, 1960, at 10 a. m. or till the appeal is disposed of. In default, I am liable to pay to the State a sum of Rs. 2,000.
This bond is signed by Augustine. On the reverse of the bond the sureties have signed, each undertaking to pay a sum of Rs. 2000/- in default of compliance with the terms and conditions of the bond. The argument is that because there is mention in this bond that an appeal had been filed, the entire bond was unenforceable, as in point of fact the appeal had not been filed when the bond was executed. But it has to be seen that this was only, a mis-statement and had nothing to do with the actual terms of the bond that the convict would be released on condition that He would undertake to appear and that the undertaking would be supported by the two sureties. The bond clearly stipulated that the convict should appear on a particular date at the place and before the officer indicated. These terms are clear and they are in no way whittled down or affected by the wrong statement in the form that an appeal had been filed. The form is a printed one and without thought it has been used not paying regard to score out the particular printed clause that an appeal had been filed. I have not the slightest doubt as to what the parties meant by entering into this bond. As soon as August in was sentenced to undergo imprisonment, the occasion for getting him released on bail arose. It was in that context the bond was executed and the convict as sell as She sureties plainly knew that they were giving an undertaking to the Sub-Divisional Magistrate that the convict would appear or would be produced on the particular date or dates.
4. For the petitioners, however, my attention has been invited to two authorities, both of which, in any opinion, in no way assist them. Roshanlal v. State A.I.R. 1957 AU 765 was a case in which a form applicable to a preliminary enquiry stage before a magistrate was used for execution of a surety bond after conviction. But what is more important in that case is that in She form the blank spaces as to the date or the time at which the convict should be produced, were not filled up. The accused appeared before the appellate Court for the first hearing but never appeared subsequently, it was held that the bond was not enforceable against the sureties. It is obvious, if I may say so, that no other view was possible in that case, for, the bond stipulated no particular date on which the convict should be produced before the appellate Court. But here the necessary particulars as to the time and place and the officer at or before whom the convict should be produced are mentioned in the bond.
Still less helpful to the petitioners is State of Uttar Pradesh v- Mohammed Sayeed : 1957CriLJ888 . There the surety bond which was in, question, was executed in favour of 'the King Emperor Quaiser-a-Hind'. It was held that by that bond the surety had not bound himself either to the Government of the Union of India, or that of the State of uttar Pradesh to have his bond forfeited on his failure to produce the accused before the Court. This was because that since January 26th, 1950, no bond executed ,in favour of Empress of India could be stated to be bond executed under the Criminal Procedure Code in view of Article; 299 of the Constitution. That situation has no application to the instant case.
5. On the assumption that it is the bond which was executed by the sureties on 27th May, 1960, that was sought to be enforced, an argument on behalf of the petitioners is advanced that inasmuch as only the sureties have executed the bond and the convict himself was not a party thereto, the bond is unenforceable. It is stated that on this question, there is a divergence of opinion in th6 Allahabad High Court. Though on the view I have expressed, namely, that it is the bond that was executed on 30th April, I960, that is relevant and not the later bond, this question does not fall to be decided, the learned Public Prosecutor invites my attention to Emperor v- Abdul Aziz : AIR1946All116 , which answers the question against the petitioners. In that case a Division Bench of the Allahabad High Court pointed out that the contract of a Surety and the contract of a person released on bail are independent of each other, and, on that view, merely because the latter did not join in the bond, it cannot be said that the bond executed by the surety is unenforceable. I am in respectful agreement with these observations, though as I said, it is not necessary to express my final opinion on the Question in this case.
6. Lastly, the petitioners forcibly appealed to the sympathy of this Court and asked that it should exercise its discretion to reduce their liability under the surety bond. The justification for this plea, it is said, is that 'the petitioners have already paid, each of them a sum of Rs. 500 under the surety bond and that both of them are too unable to pay the balance due under the bond, namely, a total sum of Rs. 3000/- Though the bond implies a contractual obligation which could be fully enforced if the State so chose, subject of course to the directions of this Court Under Section 514 (5) Criminal Procedure Code, it has to be remembered that the forfeiture is intended to serve a larger purpose than the mere realisation of the amount undertaken to be paid under the surety bond. In a sense the forfeiture may be a penalty. In another sense it is not a penalty in the same Sense as a fine is imposed. On, a person 'on conviction for an offence.
On that view, I am inclined to think that the petitioners Having each paid a sum of Rs. 500/-. it will suffice to direct each of them to pay a further sum of Rs. 500/-. To that extent the liability of each of the petitioners under the bond executed by them on 30th April, 1960, will stand reduced. The petitioners will each of them pay a further sum of Rs, 500 to the Sub-Divisional Magistrate, Nagapattinam, .within eight weeks from now. Subject to this modification the criminal revision case is dismissed.