Bekaru Sinch Vs. State of U.P [1962] INSC
106 (26 March 1962)
26/03/1962 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
KAPUR, J.L.
CITATION: 1963 AIR 430 1963 SCR (1) 55
CITATOR INFO :
D 1979 SC1498 (2,4)
ACT:
Criminal Procedure Surely bond-Substituting
one surety for another-Procedure-If accused must execute personal bond with
every surety bond-Forfeiture of bond-Code of Criminal Procedure, 1898 (Act V of
1898), ss. 499, 500, 502, Schedule V, Form, No. XLII.
HEADNOTE:
One R was granted bail on his furnishing a personal
bond and three sureties which he did. On July 7, one of the sureties S applied
for the discharge of his bond. On July 9, R made an application that the
appellants surety bond be accepted in place of S, and the same day the
appellant filed his surety bond. The appellant also filed an affidavit that he
had property enough to satisfy the bond and a vakil also certified to that
effect. The bond was sent for verification to the Tehsil and after verification
was formally accepted on August 20. Subsequently R absconded and the
appellant's bond was forfeited. The appellant contended that the forfeiture was
illegal and that his bond was not properly accepted as no warrant was issued
for the arrest of R when S applied for the discharge of his bond, as the bond of
S was not formally discharged and as R had not executed a personal bond on the
reverse of the form on which the appellant bad executed his bond.
56 Held, that the surety bond of the
appellant had been.
properly accepted and the forfeiture was
legally made. The provisions of s. 502 of the Code of Criminal procedure were
meant for the continuity of the surety bond and for enabling the accused to
offer another surety bonds; they were not conditions precedent for the
acceptance of a fresh surety in place of an earlier one. There was no occasion
to issue a warrant for the arrest of R as he was present, in Court on July 7,
when S applied for the discharge of his bond and may have intimated to the
Court that lie would offer fresh surety on July 9. The Court was interested in
getting a fresh surety for letting R continue on bail and it did no wrong in
accepting the appellant's surety bond which was offered. The bond of S stood
cancelled and appellant's bond took its place. The bond of the appellant was
really accepted on July 9 when the appellant filed the affidavit as required by
s. 499 (3) of the Code and the Vakil also certified as to his solvancy. It was
immaterial that the bond was formally accepted on August 20. Further, it was
not necessary that each surety should execute the surety bond on the reverse of
the personal bond of the accused.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 171 of 1959.
Appeal by special leave from the judgment and
order dated August 3, 1959, of the Allahabad High Court in Criminal Revision
No. 1080 of 1959.
0. P. Rana and A. 0. Ratanaparkhi, for the
appellant.
G. C. Mathur and C. P. Lal, for The dent.
1962. March 26. The Judgment of the Court was
delivered by RAGHUBAR DAYAL, J.-One Ram Narain was' ordered by the High Court
of Allahabad, on June 9, 1958, to furnish a personal bond for a lakh of rupees
and three sureties, two in the sum of Rs. 40,000/- each and one in the sum of
Rs. 20,0001in respect of the case against him for having committed. criminal
breach of trust with respect, to the funds of the Pikaura Co-operative Society
He 57 was to furnish the personal bond and the sureties within three weeks from
the date of the order. It was further ordered:
"The applicant should furnish the
personal bond and sureties as 'directed above within three weeks from today and
during that period he will not be arrested. If he does not furnish the bonds
and sureties within this period he will be liable to be re-arrested and
detained till the necessary bonds and sureties are furnished." It may be
mentioned that Ram Narain had previously furnished a personal bond and sureties
in connection with the embezzlement alleged to have been committed by him and
that the necessity for a fresh order for furnishing personal bond and sureties
arose on account of the police submitting more than one charge-sheet with
respect to the amount embezzled and it was felt that the original security
furnished might not be, effective.
On June 26, 1958, Ram Narain executed a
personal bond for Rs. 1,00,000/-and offered,the required sureties. Kashi stood
surety for Rs. 40,000/-, Safir Hussain for Rs. 40,000/ and Smt. Sona for Rs.
20,000/- respectively. The surety bond by Safir Hussain was not duly verified
as he was in hospital at that time, but when it was put up to Safir Hussain for
verification on July 12, 1958 be refused to verify it.
Prior to this, on July 7, 1958, Safir Hussain
filed an application before the Magistrate praying that his surety bonds in
connection with the embezzlement of Rs. 40,000/-and Rs. 80,000/-be cancelled.
Ram Narain was present in Court that day. No particular order was passed on
this application of Safir Hussain.
On July 93 1958, an application on behalf of
Ram Narain was filed stating that Bekaru's surety 58 be accepted in place of
Safir Hussain's surety. Bekaru filed the surety. bond offering himself to stand
surety for Re. 40,000/-for Ram Narain's appearance in Court. He was identified
by Sri Ahmad Husain, Vakil, who certified that Bekaru Singh possessed
sufficient property to stand surety for Rs. 40,000/-. The Magistrate ordered
for the verification from the Tehail and on receipt of the report from the
Tehsil, accepted the bond on August 20, 1958. The Tehsil report, however,
indicated that the house mentioned in the surety bond and alleged to be worth
Rim. 60,000/-was estimated to be worth Rs. 16,075/-.
The police charge.,sheet in the case appears
to have reached the Court on August 20, 1958, when summons for the appearance
of Ram Narain was ordered to be issued for September 1, 1958. The summons was
not served. When Ram Narain did not appear on September 1, 1958, September 9,
and September 23, the Court, on September 24, ordered action under ss. 87 and
88 Cr.P.C. against him and the issue of notices to the sureties to produce him in
Court. When he did not appear in Court on October 29, the Court forfeited the
personal bond executed by Ram Narain and the bail bonds executed by the
sureties and ordered issue of notice to the sureties to pay the penalty or show
cause a.,) to why the amount be not recovered from them. Bekaru objected to the
forfeiture of his surety bond. On April 20, 1959, the objection was disallowed
and the learned judicial officer ordered that the amount of Rs. 40,000/-be
recovered from his movable. property through attachment and sale. Bekaru
appealed but his appeal was dismissed by the learned Sessions Judge. His
revision application to the High Court was also dismissed. He has preferred
this appeal by special leave.
The main contention for the appellant is that
the learned Magistrate should pot have accepted 59 Bekaru Singh's surety bond
without first taking action contemplated by sub-sections (2) and (3) of s. 502,
Cr.P.C. Section 502 reads:- "(1) All or any sureties for the attendance
and appearance of a person released on bail may at any time apply to a
Magistrate e to discharge the bond, either wholly of so far as relates to the
applicants.
(2) On such application being made, the
Magistrate shall issue his warrant of arrest directing that the person so
released be brought before him.
(3 ) On the appearance of such person
pursuant to the Warrant, or on his voluntary surrender, the Magistrate shall
direct the bond to be discharged either wholly or so far as relates to the
applicant, and shall call upon such person to find other sufficient, sureties,
and, if he fails to do so, may commit him to custody." It is urged that
the Magistrate had to issue a warrant for the arrest of Ram Narain when Safir
Hussain had presented his application for the discharge of his surety bond and
that when Ram Narain would have appeared before the Court in execution of that
warrant, the Magistrate had to first discharge Safir Hussain's surety bond and
only then could have called upon Ram Narain to furnish other surety. The
Magistrate took no such stop and therefore could not have legally accepted the
surety bond offered by Bekaru on July 9,1958. We do not agree with this
contention. These provisions Of S. 502 are meant for the continuity of the
surety bond on the basis of which an accused has been released on bail till
such time that the accused is before the Court and for taking further action in
case the accused desires to offer another security in place of the one who is
to be discharged. They are not conditions precedent for the acceptance of 60 a
fresh surety in place of the earlier one. In the circumstances of the present
case, there was no occasion to issue a warrant for the arrest of Ram Narain on
Safir Hussain's applying for the discharge of his surety bond We do not Know in
what circumstances no particular order was passed on July 7, 1958 on the
application of Safir Hussain.
Ram Narain who was present in Court that day,
may have intimated to the Court that he would offer a fresh surety on July 9.
Anyway a fresh surety was offered on that day viz;
July 9. Bekaru stood surety. An application
on behalf of Ram Narain was presented praying for the acceptance. of Bekaru's
surety bond in place of Safir Hussain's. In accepting Bekaru's surety bond the
Court committed no wrong.
It was interested in getting a fresh surety
for letting Ram Narain continue on bail. Bakaru offered the surety bond.
His competence to stand surety for Rs.
40,000/. was certified by a Vakil, Safir Hussain's bond therefore stood
cancelled and Bekaru's took its place. We do not therefore consider that there
was any incompetency in the Magistrate's accepting Bekaru's surety bond in
place of Safir Hussain's.
It is true that Bekaru's surety bond was
formally accepted on August 20, 1958, but that does not matter. Sub-section (1)
of s. 499, Cr. P. C. provides that before any person is released on bail bond
must be executed by such person and bonds be also executed by sureties for the
attendance of that person in Court. Sub-section (3) of s.499 is "(3) For
the purpose of determining whether the sureties are sufficient, the Court way,
if it so thinks fit, accept affidavits in proof of the facts contained therein
relating to the sufficiency of the sureties or may make such further enquiry as
it deems necessary." When Bekaru furnished the surety bond he also filed
61 an affidavit stating therein that the house mentioned in the surety bond was
worth over Rs. 40,000/- Sri Ahmed Husain Vakil, certified that Bekaru possessed
sufficient property to stand surety for its. 40,000/- In the circumstances, the
Magistrate could accept Bekaru's surety bond. Of course the Magistrate could
make further enquiry as well and it was for the purpose of further enquiry that
he ordered verification from the Tehsil. Bekaru's bond, in our opinion, was accepted
on July 9, subject to further orders on the receipt of the Tehsil report.
Further, Ram Narain's continuing on bail is
justified by the provisions of 8. 500 Cr. P. C., once Bekaru's surety bond had
been filed. Its sub-s. (1) provides that as soon as the bond has been executed,
the person for whose appearance it has been executed shall be released. This
contemplates that the accused is to be released on the execution of the bonds
which should be accepted on their face value in the first instance. Section
501, Cr. P. C. provides for the issue of a warrant of arrest of the person so
released on bail if it is subsequently found that through mistake, fraud or
otherwise, insufficient sureties bad been accepted, or if they afterwards
became insufficient. We are therefore of opinion that formal acceptance of
Bekaru's surety bond on August 20, 1958 by the Magistrate does not in any way
affect Bekaru's liability on that bond from July 9, 1958. Any way, he was
liable on that bond for the non-appearance of Ram Narain on a date subsequent
to August 20, 1958.
It may be mentioned that it was urged up to
the appeal stage that the surety bond was accepted on the 20th of August 1958
after the Magistrate had known of the absconding of Ram Narain. The Courts
found against this allegation as there was no evidence in support of it.
Another point urged is that the surety bond
executed by Bekaru Singh did not have on the other 62 side the personal bond
executed by Ram Narain and that in the absence of a personal bond by Ram Narain,
the surety bond executed by Bekaru could not be legally accepted.
Reliance is placed on the case reported as
Brahma Nand v. Emperor (1) and a few other cases expressing the same view.
These cases are distinguishable on facts. In
Brahma Nand's case. (1) the accused himself had not executed any bond and
therefore it was held that the surety bonds could not be forfeited. In the
present case Ram Narain executed bond on June 26, 1958. Kasbi, one of the
sureties, executed the surety bond printed at the back of the bond executed by
Ram Narain. Ram Narain had already bond himself to pay Rs. 1,00,000/- in case
he failed to appear in Court when required. Other sureties bond themselves to
pay the various amounts in case Ram Narain did not appear. Their surety bond
are good by themselves. Bekaru's surety bond is there- fore as effective and
legal as Kashi's bond which is just on the back of Ram Narain's bond. It is not
required by any provision of the Code of Criminal Procedure that all the
sureties should execute the bond printed at the back of the form on which the
accused execute the personal bond or that the accused must execute as many
bonds in identical terms as there are surety bonds by individual sureties. The
mere fact that Form No. XLII, Schedule V. Criminal Procedure Code, prints the
contents of the two bonds, one to be executed by the accused and the other by
the surety, together, does not mean that both these bonds should be on the same
sheet of paper.
We are, therefore, of opinion that Bekaru's bond
can be forfeited if Ram Narain does not comply with the terms of his bond
executed on June 26, 1958 and that Ram Narain had not to execute a (1) A. 1. R.
1939 All. 682.
63 bond afresh when Bekaru furnished fresh
surety in place of Safir Hussain's surety
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