Report No. 102
2.4. The anomaly: how it has arisen.-
It appears that the anomaly referred to above1 has arisen as a result of the accidents of legislation. Briefly, the history of the legislative provisions on the subject, so far as is material, is as under:-
(i) In the Code of Criminal Procedure, 1898, (the predecessor of the present Code) section 107 (corresponding to present section 107) provided for a bond "with or without sureties". But when the Bill to replace the earlier Code (i.e. the Bill which led to the enactment of the present Code of 1973) was discussed in Parliament, the Words "with or without sureties" were deleted from section 107 by a Lok Sabha Amendment. The amendment of the Lok Sabha also inserted, in section 122(1), an additional clause (b)2, not contained in the earlier Code.
Presumably, clause (b) was considered necessary since, where there are no sureties, the only sanction would be recovery of a penalty from the defaulter (so far as monetary sanctions are concerned).3 This may not always be effective, and hence imprisonment was provided for. In any case, the scheme as it was enacted in 1973 was not illogical. Sections 107 and 122, as they ultimately emerged at that time, were in harmony with each other. Both the sections contemplated bonds without sureties only.
(ii) The illogicality really came in 1978. In that year, section 107(1) was amended, and the words "with or without sureties" were re-introduced in that sub-section. But no amendment was made in section 122(1)(b) to cover the case of bonds executed with sureties under section 107(1) as so amended. It is from this date that the position has become illogical. Of the field covered by section 107, only a part is now covered by section 122. The rest is left uncovered.
(iii) As a result, under the present position-
(a) default in complying with a bond for keeping the peace executed under section 107(1) can be punished with imprisonment of the defaulter under section 122(1) (b); but
(b) default in complying with a bond for keeping the peace, if accompanied with sureties, cannot be punished with such imprisonment, and only monetary penalties can be recovered from the sureties4.
1. Paras. 2.1 to 2.3, supra.
2. For the text of section 122, see para. 2.3, supra.
3. For the law between 1973 and 1978, see Bashir v. State of Rajasthan, 1977 Cr LJ (NOC) 198 (Raj).
4. Paras. 2.1 and 2.3, supra.