A.K. Das, J.
1. This revisional application is directed against an order of the Police Magistrate, Sealdah imposing a fine of Bs. 1,000-/ only for failure to produce the accused persons for whom he stood surety.
2. What happened is as follows: The petitioner Bibhuti Bhusan Ghosh, a muktear practising at Sealdah Courts stood surety for appearance in court of one Batan Mondal convicted under Section 304-A I.P.C. and Section 118-A Motor Vehicles Act and sentenced to pay a fine of Rs. 1,000/-, in default to rigorous imprisonment for six months for his conviction under Section 304-A I.P.C. The order was passed by the learned Magistrate on 19th June 1963 and he was released on executing a bond of Rs. 2,000/- with a surety for like amount for moving an appeal against the conviction and sentence by 8.7.63. The realisation of the fine was consequently stayed. The learned Sessions Judge before whom the convicted person appealed by his order dated l.7.63 stayed realisation of fine and allowed the convicted person to remain on the same bail. The petitioner failed to produce the accused on 8th July, 1963 in terms of the bail bond and after the appeal against conviction was dismissed by order dated 27.9.63, the petitioner as surety was ordered to produce the accused before the learned Magistrate on November 25, 1963 for payment of fine or to serve out the term of imprisonment. The surety failed to produce the accused in spite of sufficient opportunity and thereafter a proceeding under Section 514 Criminal P.C. was drawn up against him and the learned Magistrate eventually forfeited the bond and imposed the penalty.
3. Mr. S.S. Mukherjee, learned Advocate for the petitioner has argued that in terms of the bail bond the petitioner was liable to produce the convicted person on 8.7.63 and that on that date, the petitioner produced him. His further argument is that the conditions of the bail bond could not be enlarged unilaterally and he was not bound to produce the accused on any date subsequent to 8th July, 1963 and the proceeding under Section 514 Criminal P.C. or the penalty imposed is therefore misconceived After hearing Mr. Mukherjee and the learned Advocate for the State, I think there is considerable force in the argument of Mr. Mukherjee. The relevant portion of the bail bond reads as follows:
I do hereby declare myself surety for the above mentioned....that he will appear before the Court of P.M. Sealdah on the following date, namely, 8.7.63 and in any case of his making default therein I bind myself to forfeit to Government the sum of Rs. 2,000/- only.
Dated this 19th day of June, 1963.
Sd/- Bibhuti Bhusan Ghosh.
* * * * * *The petitioner, therefore, by this bond bound himself to produce he accused on 8.7.63. A proceeding under Section 514, Criminal P.C., can be drawn up for failure to carry out the terms of this bond and penalty imposed. Did the petitioner really fail to produce the convicted person on that date? The order dated 8.7.63 by the learned Presidency Magistrate reads as follows:Seen orders of the appellate court. Realisation of fine stayed. Await orders and put up on 13.8.63.
There is no mention of the failure of the petitioner to produce the accused on that date and indeed, if it were otherwise, the learned Magistrate should have drawn up proceeding immediately. It is absurd for the learned Magistrate to say one year after, inspite of assertion by the petitioner, that the convicted person was not produced on that date and therefore forfeiture of the bail bond or imposition of penalty is illegal and cannot be supported.
4. Reading the learned Magistrate's order, however, it seems that the learned Magistrate construed the bail bond to include the surety's liability to produce the convicted person not only on the date stipulated, namely, 8.7.68 but on subsequent dates also as the Sessions Judge's order directed that he might, continue on the same bail. This does not mean that the Sessions Judge's order immediately placed a liability on the surety for subsequent dates also to which, in terms of the bail bond, he had never agreed This liability is based upon a contract which cannot be unilaterally extended in the absence of the petitioner's consent, and such extended liability cannot therefore be enforced in law. It was open to the police Magistrate to call upon the surety to agree to continue as surety in terms of the Sessions Judge's order. This was not done and the surety's liability therefore was for production on8th July, 1963 only, in so far as it refers to 'same bail' can only mean the same amount of bail and, but for a fresh bail bond extending terms of previous bail, (he surety cannot be saddled with liability. The learned Magistrate thinks that in view of the Sessions Judge's order he was not competent to pass any order for trash bail. There is no doubt that it was the duty of the surety to produce the accused on the date mentioned in the bail bond but the proceeding appears to have been started for failure to produce after dismissal of the appeal by the Sessions Judge; the petitioner surety however never undertook that liability by bail bond. No question of the surety making any petition for absolving him of any liability for production on future dates arises, as the surety never undertook by his bond to produce him on any date other than 8.7.63.
5. The proceeding is therefore misconceived and the order forfeiting the bail bond or imposing penalty cannot be supported and is therefore set aside.
6. The Rule is made absolute.