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PETITIONER: RAM LAL

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT05/03/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) FAZALALI, SYED MURTAZA

CITATION:  1979 AIR 1498            1979 SCR  (3) 448  1979 SCC  (2) 192

ACT:      S. 499(1)  Cr.P.C.-No personal bond taken from accused- Nor was  the signature  of the accupsed taken on the reserve of surety  bond-Accused jumped  bail-Sureties if liable-Bond executed by  surety if  independent of  the bond executed by accused.

HEADNOTE:      Dismissing the appeal, ^      HELD:  Section   499(1)  of   the   Cr.   P.C.,   which contemplated the  execution of  a bond by the accused and by the sureties,  did not  imply that  a single  bond was to be executed by both the accused and the sureties, signed by the accused and  counter-signed by  the sureties. An undertaking of  the  surety  in  Form  42,  Schedule  V  to  secure  the attendance of  the accused  was  quite  independent  of  the undertaking given  by the accused to appear before the court whenever called  upon, even  if both the undertakings of the surety and  the accused  happened to be executed in the same document for  the sake  of convenience.  Each  under  taking being distinct can be separately enforced. [450 C, 451 B-D]      The fact  that an accused would not be released on bail without his  executing a personal bond does not mean that if a person  is released  by mistake  without his  executing  a personal bond,  the sureties  are absolved from securing the attendance of  the accused  and his  appearance  before  the court.  The   sureties’  responsibility   arises  from   the exeeution of  the surety  bond and  is not  contingent  upon execution of  a personal  bond by  the accused.  Nor is  the liability to  forfeiture of  the bond executed by the surety contingent  upon   the  execution   and  the   liability  to forfeiture of the personal bond executed by the accused. The forfeiture of  the personal  bond of  the accused  is not  a condition precedent  to the forfeiture of the bonds executed by the sureties. [451 E-F]      Abdul Aziz  & Anr.  v. Emperor, AIR 1946 All. 116; Mewa Ram & Anr. v. State, AIR 1953 All. 481; approved.      Bakaru Singh  v.  State  of  U.P.,  AIR  1963  SC  430; distinguished.      Brahma Nand  Misra  v.  Emperor,  AIR  1939  All.  682; Sailesh Chandra Chakraborty v. The State, AIR 1963 Cal. 309;

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over-ruled.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 154 of 1972.      From the  Judgment and  Order dated  12-11-1971 of  the Allahabad High Court in Criminal Revision No. 865 of 1970.      Shiv Pujan Singh for the Appellant.      D.P. Uniyal and M. V. Goswai for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY  J.-Jorma  who  was  convicted  by  the learned Sessions  Judge, Dehradun  under Section  302 Indian Penal Code and 449 sentenced to  suffer imprisonment  for life, was directed by the High  Court of  Allahabad to  be  released  on  bail  on furnishing  bail   to  the   satisfaction  of  the  District Magistrate, Dehradun.  The  District  Magistrate  (Judicial) Dehradun ordered  Jorma to  execute a personal bond in a sum of Rs.  5,000/- and  to furnish two sureties in a sum of Rs. 10,000/- each.  Ram Lal the present appellant was one of the persons who  executed a  surety bond. Another, Abdul Jabbar, also executed  a surety  bond. By some oversight no personal bond was taken from Jorma nor was his signature taken on the reverse of  the  bonds  executed  by  the  two  sureties  as appeared to  have been  usually done.  Jorma jumped bail and the sureties  were unable to produce him when required to do so. The  District Magistrate, Dehradun, therefore, forfeited the surety  bonds and issued a warrant of attachment against the sureties  under Section  514 of  the  Code  of  Criminal Procedure, 1898.  The appellant  preferred an  appeal to the High Court  of Allahabad  against the  order of  forfeiture. Before the  High Court it was submitted that the surety bond executed by  the appellant  could not  be forfeite  when  no personal bond  had been  taken from the accused who had been released on  bail. The  High Court over-ruled the submission of the  appellant and confirmed the order of forfeiture. The appellant has  filed this appeal on a certificate granted by the High Court under Article 134(1)(c) of the Constitution.      Shri  Shiv   Pujan  Singh,   learned  Counsel  for  the appellant submitted  that the  question  of  forfeiting  the surety bond  for the  failure of the accused to appear would arise only  if the  accused himself  had executed a personal bond for  his appearance.  He submitted that someone must be primarily bound  before the  surety could  be bound  and his bond forfeited.  He invited  our attention to Section 499 of the Code of Criminal Procedure, 1898, and form No. 42 of the forms in  Schedule V.  He relied  on the decisions in Brahma Nand Misra  v. Emperor, (1), and Sailash Chandra Chakraborty v. The  State(2). A  reference was  also to  Bakaru Singh v. State of  U.P. (3) On the other hand the learned Counsel for the State  urged that  the bond to be executed by the surety was independent  of the  bond to  be executed by the accused and there  was no impediment in the way of the forfeiture of the surety  bond even  in the  absence of  a  personal  bond executed by  the accused.  He relied  upon the  decisions in Abdul Aziz  & Anr.  v. Emperor(4),  and Mewa  Ram &  Anr. v. State (5). 450      Section 499(1)  of the  Code of Criminal Procedure Code 1898 was in the following terms:           "Before any person is released on bail or released      on his  own bond,  a bond  for such sum of money as the

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    police officer  or Court,  as the  case may  be, thinks      sufficient shall  be executed by such person, and, when      he is  released on  bail, by  one  or  more  sufficient      sureties conditioned  that such persons shall attend at      the time  and place  mentioned in  the bond,  and shall      continue so  to attend  until otherwise directed by the      police officer or Court, as the case may be". Now, this  provision contemplated the execution of a bond by the accused,  and by  the sureties.  The provision  did  not imply that  a single  bond was to be executed by the accused and the  sureties, as  it were,  to be signed by the accused and counter  signed by the sureties. Form No. 42 of Schedule V, Code of Criminal Procedure, 1898, was as follows:           "XLII-bond and  bail-bond on a preliminary Inquiry      before a Magistrate.                  (See Sections 496 and 499)           I, (name),  of (place),  being brought  before the      Magistrate of  (as the  case may  be charged  with  the      offence of,  and  required  to  give  security  for  my      attendance, in  his Court  and at the Court of Session,      if required,  do bind  myself to attend at the Court of      the said  Magistrate on  every day  of the  preliminary      inquiry into  the said  charge, and, should the case be      sent for  trial by  the Court  of Session,  to be,  and      appear, before  the said  Court  when  called  upon  to      answer the charge against me; and, in case of my making      default, herein, I bind myself to forfeit to Government      the sum of rupees      Dated this           day of                        19                                                  (Signature)           I  hereby   declare  myself  (or  we  jointly  and      severally declare  ourselves and each of us) surety (or      sureties) for  the said  (name) that he shall attend at      the Court  of on  every day  of the preliminary inquiry      into the  offence charged  against him, and, should the      case be sent for trial by the Court of Session, that he      shall be,  and appear,  before the said Court to answer      the charge against him, and, in case of his 451      making default  therein, I  bind  myself  (or  we  bind      ourselves) to forfeit to Government the sum of rupees      Dated this                   day of                  19                                                 (Signature)" The undertaking  to be  given by  the accused as may be seen from form  No. 42  of Schedule  V was to attend the Court on every day of hearing and to appear before the Court whenever called upon.  The undertaking  to be given by the surety was to secure  the attendance  of the  accused on  every day  of hearing and  his appearance before the Court whenever called upon. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance  with the  terms of  the bond  executed by the accused.  The  undertaking  of  the  surety  to  secure  the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever  called upon,  even if  both the undertakings happened to be executed in the same document for the sake of convenience.  Each   undertaking  being  distinct  could  be separately enforced.  It is  true that  before a  person  is released on  bail he must execute a personal bond and, where necessary, sureties must also execute bonds. There can be no question of  an accused  being released  on bail without his executing a  personal bond. But it does not follow therefrom that  if  a  person  is  released  by  mistake  without  his executing a  personal bond  the sureties  are absolved  from

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securing his attendance and appearance before the Court. The responsibility of  the surety  arises from  the execution of the surety  bond by him and is not contingent upon execution of a  personal bond  by the accused. Nor is the liability to forfeiture of  the bond  executed by  the surety  contingent upon the  execution and  the liability  to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture  of the  bonds executed  by the sureties. The Calcutta High  Court in  Sailash Chandra  Chakraborty v. The State (supra)  and single  Judge of the Allahabad High Court in Brahma  Nand Misra  v. Emperor,  (supra) proceeded on the assumption that  the bond  executed by  the accused  and the sureties was  single and  indivisible and if the accused did not join in the execution of the bond, the bonds executed by the sureties  alone were invalid. We do not find any warrant for this assumption in Section 499 of the Criminal Procedure Code of  1898. We  are  afraid  that  there  has  been  some confusion of  thought by  the importation  of the  ideas  of ’debt’ and  ’surety’ from  the civil  law. As pointed out in Abdul Aziz  &  Anr.  v.  Emperor(supra)  under  Section  499 Criminal Procedure  Code, the  surety did  not guarantee the payment of any sum of money by the person accused 452 who was  released on  bail but  guaranteed the attendance of that person and so the fact that the person released on bail himself did  not sign  the bond  for his  attendance did not make the bond executed by the surety an invalid one. In Mewa Ram &  Anr. v. State (supra) the difference between a surety under the  Code of Criminal Procedure and a surety under the Civil Law was pointed out and the view taken in Abdul Aziz & Anr. v.  Emperor (supra)  was reiterated.  We agree with the view expressed in Abdul Aziz & Anr. v. Emperor, and Mewa Ram & Anr. v. State (supra).      In Bakaru  Singh v. State of U.P., (supra) the question presently under  consideration did  not arise.  The question which was  considered  in  that  case  was  whether  it  was necessary that  the personal  bond of  the accused should be executed on  the other  side of  the bond  executed  by  the surety on  the same  paper. It  was held  that  it  was  not necessary. And,  it was  pointed out that the mere fact that form No. 42, Schedule V Criminal Procedure Code, printed the contents of the two bonds, one to be executed by the accused and the other by the surety together, did not mean that both the bonds  should be  on the  same sheet  of paper.  To  the extent that it goes the decision helps the State and not the appellant. For  the reasons  stated  above,  the  appeal  is dismissed. N.V.K.                                     Appeal dismissed. 453