1. The petitioner in this case stood surety for an accused person and signed the bail bond to the effect that he would attend at the Court of the Suburban Police Magistrate at Alipur on 7th June 1932 and other dates of the preliminary inquiry into the offence charged against the accused and should the case be sent for trial by the Court of Session, he would appear before the said Court to answer the charge against him. It seems that on several occasions the accused appeared and eventually the case was transferred from the file of the Suburban Police Magistrate to that of an Honorary Magistrate of Alipur for disposal. Sub-sequent to this, on 20th June 1932, the accused failed to appear, whereupon proceedings were taken against the surety for forfeiture of the bond and an order for forfeiture was made. The case was then retransferred to the file of the Suburban Police Magistrate and though the District Magistrate set aside the former forfeiture order, the Suburban Police Magistrate called upon the surety to show cause before himself in regard to his failure to appear on a subsequent occasion. The order for forfeiture was again made against the present petitioner: the case of Shamsuddin Sirkar v. Emperor (1903) 30 Cal 107 is an authority for the proposition 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.
2. Applying this principle to the present case the obligation under the bond ceased to exist on the transfer of the case and it is difficult to see how in any view of the case the bond could be said to have been revived on the subsequent retransfer of the case. It is really a question which depends upon the language of the bond by which the surety has bound himself and the surety would no doubt be liable, even in such a case, if appropriate language were used. In the present case, the argument on behalf of the petitioner seems to be sound and the Rule must be made absolute. I direct that the penalty, if already paid, be refunded.