1. The facts in this revision petition are as follows: One Venkatasamy Naidu was charged before the Chief Presidency Magistrate with an offence under Section 415 of the Indian Penal Code. He was released on bail and the two petitioners signed a bond for his appearance in the sum of Rs. 2,500 each. The accused committed suicide before the date of surrender: the Chief Presidency Magistrate called on the, sureties to show cause why their bail should not be forfeited and, after arguments, decided that they were liable on the ground that the suicide of the accused was a preventable reason for his non-appearance and one which they should have made themselves aware of and guarded against. It was first argued on this petition that the Chief Presidency Magistrate approached the question from the wrong point of view and that he should have held that the accused had not failed to attend and that death prevented his attendance. We intimated at the hearing that we were unable to accept this view and Dr. S. Swaminadhan was unable to show how a permanent incapacity to attend caused by the act of the accused could be distinguished from a temporary incapacity owing to the same causes. In our opinion, the Chief Presidency Magistrate considered the liability of the sureties from the right point of view. But the question to be decided is, whether he was right in the view he took of the sureties liability. Mr. J.C. Adam, who appeared for the Crown Prosecutor, contended that the sureties must be taken to guarantee the appearance of the accused subject to the act of God and the act of the State of which the accused is a subject. He has invited our attention to a large number of English authorities, including, very properly, some which did not support his contention. The decisions in civil cases against the surety rest on the well established principle that where one of two persons must suffer, it should be the person through whose instrumentality, however innocent, the loss can be said to have arisen, but we do not think that this principle applies in criminal cases. We do not propose to deal with all the case's quoted but only those which are sufficient to establish the proposition required for, our decision. Merrick v. Vancher 6 Term. Rep. 50 : 101 E.R. 429 was an application by the bailees for an exoneretur to be entered upon several bail pieces on the ground that the defendant had been sent out of England under the Alien Bill, 33 Geo., c. 4. Lord Kenyon, C.J., stated the law as follows: 'The bailees only engaged for the principal in the then situation of the parties but it has now become impossible for them to render the principal, and this impossibility does not arise from any act which they could control, but from the operation of an Act of Parliament. These bailees, therefore, to whom no fault or neglect whatever is imputable, ought not to suffer in consequence of an Act which was passed for the benefit of the public.' This is exactly the proposition stated by the Chief Presidency Magistrate and it is to be noted that the test applied by the Chief Justice was whether any default or neglect is imputable to the bailee. The same view was evidently adopted by the Court of King's Bench in Folkim v. Critico 104 E.R. 448 which was an application by a bailee in like circumstances though the principle is not clearly stated.
2. The next question is whether there was a duty cast on the bailee to guard the accused so closely that he could not commit suicide. There is no direct authority on the point but the case of Robertson v. Patterson 7 East 405 supplies the answer. In that case, the defendant being a seaman had been arrested at the suit of the plaintiff for a debt and was released on bail, after which he was impressed into His Majesty's service. The defendant's bail applied for a habeas corpus, directed to the Commander of the ship to bring him up for the purpose of being rendered in discharge of his bail. A rule nisi was obtained for entering on exoneretur on the bail piece.
3. The Court thought it unnecessary to issue the writ of habeas corpus but at once entered an exoneretur upon the bail piece. Now, it is clear that it would have been in the power of the sureties to prevent the accused being impressed. All that they had to do was to do what the Chief Presidency Magistrate seems to think the sureties in this case ought to have done, viz., guard him carefully and confine him so that he should never be in any public place where he could be impressed. It appears to us that the effective stops to prevent impressment would be more easily taken than steps to prevent suicide. Mr. Adam contended that the accused was actually in the custody of his bailees. If that is so under the present form of surety bond, which we doubt, it was certainly so in 1806 when the person was impressed into His Majesty's service. Mr. Adam has argued with considerable force that the bailing of the accused gave him an opportunity to commit suicide and that it was necessary to enforce the liability of the sureties so as, on the one hand, to make them understand the grave risk which they run in entering into these bonds and, on the other hand, to impress upon persons accused the serious responsibility which they would throw on their sureties if they made away with themselves. These considerations are, however, germane to all cases when the accused or defendant has allowed himself to be arrested or impressed. But we do not find that the Court of King's Bench has proceeded on this view. In our opinion, the fact that the sureties did not take steps to prevent the accused from committing suicide, even though the possibility of his doing so may have passed through their minds, does not amount to such neglect or default as to make them liable on the bond. The question we hare to decide has quite recently come before a Bench of the Calcutta High Court Nrisingha Deb Chatterjee v. King-Emperor 16 C.W.N. 550 which decided that where an accused commits suicide, the sureties are not liable for the default of his appearance. For the reasons stated above, we have come to the same conclusion. We set aside the Order of the Chief Presidency Magistrate and direct that the sureties be discharged from their liability under the bail bond.