Report No. 41
Chapter 42 of the Code contain provisions for bonds, or rather for the forfeiture of bonds, while the provisions for the execution of bonds of various kinds are to be found scattered all over the Code. The main provision regarding forfeiture is in section 514, which, in substance, says that if a bond is forfeited to the satisfaction of the court concerned, the penalty mentioned in the bond may be recovered from the party liable to pay it, and the mode of recovery mentioned is attachment and sale of movable property, and, failing that, by sending the party concerned to civil jail for six months.
42.2. Section 514(1).-
Su.-section (1) of section 514 empowers the Court by which a bond has been taken or a Presidency Magistrate or Magistrate of the first class, to order its forfeiture, if satisfied that its terms have been violated; and when the bond is for appearance before a Court, the Court has similar powers. A doubt has sometimes arisen1 whether, in the case of a bond for appearance in a particular Court, that Court alone can forfeit it or whether any Magistrate of the first class has the power.
As a matter of policy, we think that this power should, in the case of a bond for appearance before a Court, be confined to that Court, as that Court is in the best position to judge the gravity of the breach of condition causing forfeiture. Occasionally, some doubt has also arisen2 whether a bond for appearance before a Court can be forfeited by the order of a Court to which the case was later transferred. It is only proper that the transferee Court should have the same power to deal with such a bond as the first Court had when the case was in that Court. We propose to clarify both these points by a suitable amendment.
It has been suggested3 that, apart from the bonds mentioned in the Cod.-and they are mainly for appearance in Court or for good behaviour or for keeping the peac.-a provision should be made to authorise the police to take a bond for the production of movable property in Court in case the property, because of its bulk or other reason, cannot conveniently be removed from where it happen to be. The normal procedure4 is that the police seizing any property must report the seizure to a Magistrate who can then make such order as he thinks fit.
It may, however, happen in certain circumstances that the property cannot be at once seized in a physical sense, and it may be useful to provide that the police may let it remain in the custody of a surety on his executing a bond to produce the property in Court when asked to do so. Once such a provision is made, it would be quite simple to provide for the forfeiture of the bond. We suggest, therefore, that section 523 should be suitably amended to provide for such a bond. As far as section 514(1) is concerned, any such bond should be equated to a bond for appearance before a Court.
We may mention two more suggestions which we have not found it necessary to adopt. One is5 that a provision should be made for the forfeiture of a bond which Government sometimes takes under section 401 from a person whose sentence Government decides to suspend or remit. Such a bond is not mentioned in the Code, nor is it taken by a criminal court, and it would be hardly proper to provide for its forfeiture through a criminal court. The second suggestion is that the liability of a surety in respect of a bond should not be enforced if the principal has in respect of that bond paid the penalty.6 We do not think, however, that the ordinary rule7 that the liability of a surety should be c.-extensive with the principal's liability should be applied to criminal jurisdiction, where the object of a bond is different.
1. Hardwari Lal v. State, AIR 1959 All 751.
2. Mustaq.-Mu.-Din, AIR 1926 All 297; Ballabh Das, AIR 1943 Born 178 (179) (DB); Karali Charan Chatterjee, AIR 1949 Pat 196 (197).
3. Suggestion of the Government of Madhya Pradesh received through the Home Ministry [F. 3(2)/5.-L.C., Pt. IV, S. No. 65].
4. See section 523.
5. M. Homi v. Deputy Commissioner, AIR 1953 Pat 302 (305). The case went up to the Supreme Court on appeal AIR 1955 SC 478: (1955) 2 SCR 78; but this point was in issue. As to another case in which such a bond was taken, see Sohan Singh, AIR 1955 Punj 156 (DB).
6. See Narain Sahai v. Emp., AIR 1946 All 333 (336) (FB) in which conflicting decisions on the point are discussed.
7. See section 128, Contract Act.
42.3. Sections 514(2) and (3).-
We note that a Maharashtra amendment1 of the Code has replaced the existing su.-sections (2) and (3) of section 514 by a simple provision which equates the procedure for recovery of the penalty under a forfeited bond with the procedure for the recovery of a fine imposed by a Court. We propose to adopt this amendment in the Code.
1. See Maharashtra Act 22 of 1960, section 2.
42.4. Revised su.-sections (1) and (2).-
We propose accordingly that sub¬sections (1) and (2) of section 514 be replaced by the following.-
"(1) Where a bond under this Code is for appearance, or for production of property, before a court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation.- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court shall proceed to recover the same as if such penalty were a fine imposed under this Code."
42.5. Section 514(4).-
Su.-section (4) of section 514 provides that if the penalty is not paid and cannot be recovered by attachment and sale of property, the Court may order the person, who is bound under the bond, to imprisonment in civil jail for six months. We feel that imprisonment in these circumstances is out of accord with modern thinking and propose to omit su.-section (4).
42.6. Section 515.-
Section 515 provides for appeals against orders passed under section 514 by Magistrates. These are, at present, made appealable to the District Magistrates, but in view of the separation of the judiciary we consider that all such appeals should lie to the Sessions Judge.
Section 515 may accordingly be revised to read as follows.-
"515. All orders passed under section 514 by any Magistrate shall be appealable to the Sessions Judge, or, if not so appealed, may be revised by him."