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PETITIONER: BEKARU SINCH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 26/03/1962

BENCH: DAYAL, RAGHUBAR BENCH: 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

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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.

JUDGMENT: 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

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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

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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

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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 bond.  We therefore hold  that  the appellant’s  bond  has been rightly forfeited  on  the  non- appearance  of Ram Narain in ’Court.  We  therefore  dismiss the appeal.                       Appeal dismissed