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PETITIONER: RAMESH CHANDRA

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT14/10/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G.

CITATION:  1972 AIR   16            1972 SCR  (1)1084  1973 SCC  (3) 689

ACT: Surety  Bond-To  Produce  truck  "whenever  ordered  by  the court"Executed  in  one Sub-Divisional  Magistrate’s  Court- Forfeited by another Sub-Divisional Magistrate’s  Court-Plea of jurisdiction cannot be raised for first time in the  High Court-Plea   one   interlaced  with   questions   of   fact- Construction of bond.

HEADNOTE: The appellant declared himself surety in the court of a Sub- Divisional  Magistrate and bound himself to produce a  truck "whenever  ordered by the court" to produce. the  same.   He was  given  notice  to produce the  truck  by  another  Sub- Divisional  Magistrate  in  the same district  and  when  he failed  to produce the same the Magistrate passed  an  order forfeiting the surety bond and directing the realisation  of the  amount  covered by the bond as fine.  In  his  revision application before the High Court the appellant took a  plea that the bond could be forfeited only by the court in  which it  was executed.  The High Court did not allow the plea  to be raised on the ground that the plea was not raised  either before the Magistrate or before the Sessions Judge. Dismissing the appeal to this Court, HELD  :  (1) The High Court rightly  refused  the  appellant permission  to urge the ground as to want  of  jurisdiction. Such a plea of jurisdiction is interlaced with questions  of fact.   It may be that the case was transferred, or  that  a particular court was abolished, or that allocation of  busi- ness  was  changed or redistributed.  The  records  indicate many probabilities and that was why the High Court  declined to go into the question. [1087 B] (2)  Even  if  the appellant were permitted  to  raise  this question  in the present case without any question  of  fact and purely on the construction of the bond, it would  appear that  the  appellant  bound himself  to  produce  the  truck whenever  ordered by the court to produce the  same.   There was  no  undertaking to produce the truck  in  a  particular court.   The undertaking was to the court of the  Magistrate and  the  Magistrate  exercises jurisdiction  in  the  whole district under s. 12 of the Code of Criminal Procedure.  The word  ’court’  in  the bond in the present  case  means  the Magistrate’s court which dealt with the case.   Furthermore,

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the  bond  provided that in case of  default  the  appellant bound  himself  to  forfeit to  the  Government  the  amount covered by the bond. [1088 C] Ballabhdas  Motiram Gupta v. Emperor, A.I.R. 1943 Bom.  178, held inapplicable.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Civil Appeal No. 239  ,of 1968. Appeal  by special leave from the judgment and  order  dated May  17,  1968  of  the Allahabad  High  Court  in  Criminal Revision No. 1130 of 1966. E. C. Agarwala, for the appellant. O. P. Rana, for the respondent.                             1085 The Judgment of the Court was delivered by- Ray, J. This appeal is by special leave against the judgment dated  17 May, 1968 of the Allahabad High Court.  The  order of  the  Allahabad  High  Court was  passed  on  a  revision application  of  the appellant against the  order  dated  28 January,  1966  of  the  Civil  and  Sessions  Judge,   Agra rejecting  the revision against the order of the  Magistrate dated  5  June,  1965  forfeiting the  surety  bond  of  the appellant  and directing the sum of Rs. 20,000  be  realised from the appellant. The  bond came to be furnished by the appellant under  these circumstances.  One Kishan Lal Gupta made an application for obtaining custody of truck No. RJZ-1724 in the case of State v. Sua Lal under the Essential Commodities Act in the  court of  the Sub-Divisional Magistrate, Kiraoli  Kheragarh.   The truck  had been seized by the police on the allegation  that it was carrying, essential commodities to a prohibited area. The truck was in the custody of the police at Fatehpur Sikri Police Station. On 16 December, 1963 the Sub-Divisional Magistrate  Kiraoli, Kheragarh,  Agra ordered delivery of the truck be  given  on furnishing  two  sureties  of,  Rs.  10,000  each  with  the personal  bond of the like amount.  The prosecution filed  a revision  against  the  order.   The  Additional  District Magistrate, Kheragarh rejected the revision application on 1 January,  1964  with  the observation that it  was  for  the Magistrate  to  decide as to who was to be  given  temporary custody of the truck and the matter required  clarification. The prosecution moved that the truck should be given to  the custody of the Manager, Government Roadways of the  Regional Transport    Officer.    Eventually,   the    Sub-Divisional Magistrate Kiraoli-Kheragarh on 9 January, 1964 ordered that the  truck  might be given to the custody  of  reliable  and independent person on furnishing two independent sureties of Rs. 20,000 each and the personal bond of the like amount. It  is in this context of events that the appellant  on-  13 January, 1964 in the court of the Sub-Divisional Magistrate, Kiraoli-Klieragarh,  Agra declared himself surety for  truck No. RJZ-1724 and gave a bond as follows -               "I  do hereby bind myself to produce the  said               truck whenever ordered by the court to produce               the  same  and in case of  my  making  default               therein  I  bind  myself  to  forfeit  to  the               Government the sum of Rs. 20,000". On 13 January, 1964 the appellant also gave a personal  bond that  he  owned  property worth  Rs.  1,05,000  and  further declared that be would not dispose of his property till  the bond is discharged by the Sessions Court.

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1086 On 1 May, 1965 the Sub-Divisional Magistrate, Kheragarh gave notice  to  the appellant and the other  surety  Kishan  Lal Gupta that the truck had not’ been produced in the court and the sureties were informed to produce the truck in the court of the Sub-Divisional Magistrate, Kheragarh on 10 May,  1965 and also show cause as to why the surety bond of Rs.  20,000 should not be forfeited. On  5  June, 1965 the Sub-Divisional  Magistrate,  Kheragarh passed  an  order  recording that in spite  of  notices  the sureties  did not produce the truck And failed to  make  any response.  The Sub-Divisional Magistrate further recorded in the  order  that under order dated 10 May, 1965  the  surety bond was forfeited and notice was given to the appellant  to show  cause as to why the said amount of the surety was  not to  be realised from the appellant.  In spite of service  of the  notice on the appellant he did not make  any  response. The Sub-Divisional Magistrate under these circumstances on 5 Juno, 1965 passed an order that the amount of Rs. 20,000  of the  surety bond should be realised from the appellant as  a fine. The  appellant made an application in revision  against  the ,order  of the Sub-Divisional Magistrate.   The  application was  before the Civil and Sessions Judge, Agra who  rejected the revision application on 28 January, 1966. The  appellant  thereafter went up in revision to  the  High Court  ’at  Allahabad  against the order of  the  Civil  and Sessions,  Judge  ,dated 28 January, 1966.  The  High  Court said that there was no explanation as to why the truck  was. not  produced.  The High Court found it a clear  case  that the  entire  amount  of  the  bond  be  recovered  from  the appellant.   On behalf of the appellant prayer was made  for reduction   of  the  amount.   The  High  Court   found   no justification for the same.  Before the High Court the point was  raised that the surety bond was given in one court  and it  was forfeited in another court.  The High Court did  not allow the question to be raised on the ground that the point had  not  been raised either before the  Magistrate  or  the Sessions  Judge, and, therefore, the High Court declined  to allow any such question to be raised. Counsel  for the appellant contended that the bond was  exe- cuted in the court of the Sub-Divisional Magistrate, Kiraoli and the order of forfeiture of the surety bond was passed by the Sub-Divisional Magistrate, Kheragarh and it was only the court of the Sub-Divisional Magistrate, Kiraoli which  could forfeit the bond amount and no other court could.                             1087 The  High Court rightly refused the appellant to  urge  this ground  as  to  want of jurisdiction of the  court  of  Sub- Divisional Magistrate, Kheragarh to forfeit the bond amount. Such a plea of jurisdiction is interlaced with questions  of fact.   It  may be that the case was  transferred  from  the court of one Magistrate to the court of another.  It may  be that a particular court is abolished and the jurisdiction of the  abolished court is transferred to the other court.   It may   be   that  allocation  of  business  is   changed   or redistributed among Magistrates Court from time to time.  If this  particular  ground had been urged at the  proper  time these facts could have been elucidated. It  will  appear from the records that the surety  bond  was given  on  13 January, 1964 in the court  of  Sub-Divisional Magistrate,  Kiraoli Kheragarh, Agra.  The personal bond  of the  appellant  was given on the same day  before  the  same Magistrate.  The notice dated 1 May, 1965 for production  of the truck and for forfeiture of the surety money in  default

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of  production  was  given by the  court  of  Sub-Divisional Magistrate,- Kiraoli Kheragarh, Agra and was signed by  Sub- Divisional  Magistrate, Kheragarh.  The order dated 5  June, 1965  was  also by the court of  Sub-Divisional  Magistrate, Kiraoli-Kheragarh,   Agra  and  signed   by   Sub-Divisional Magistrate, Kheragarh.  The judgment dated 28 January,  1966 of  the court of Sessions Judge, Agra also stated  that  the case  was  pending before  Sub-Divisional  Magistrate,  Khe- ragarh.  These facts indicate many probabilities and that is why the High Court rightly declined to go into the question. Counsel for the appellant relied on the provisions contained in section 514 of the Criminal Procedure Code and the  Bench decision  of  the Bombay High Court  in  Ballabhdas  Motiram Gupta v. Emperor reported in A.I.R. 1943 Bom. 178 in support of  the proposition that the bond given to a court could  be forfeited  only by that court.  In the Bombay case the  bond was given by the accused for his appearance in the court  of the.   Chief Presidency Magistrate.  The bond was  forfeited by an order of the 8th Presidency Magistrate to whose  court the case had been transferred.  The terms of the bond in the Bombay case were that the accused bound himself to attend in the court of the Chief Presidency Magistrate on 29  February next  to answer to the charge and to continue so  to  attend until otherwise directed by the court.  The accused attended on 29 February and thereafter continued to attend the  court of  the Chief Presidency Magistrate until 20 April when  the case  was  transferred  to the court  of  Eighth  Presidency Magistrate.   The  accused continued to  appear  before  the Eighth  Presidency Magistrate until 5 December when he  made the  default.   The  question was whether  the  accused  had broken  the condition and the bond.  The Bombay  High  Court came to 1088 the  conclusion  that he did not.  The reason was  that  the accused  had  undertaken to attend the court  of  the  Chief Presidency’  Magistrate and to continue so to attend,  i.e., to attend the court of the Chief Presidency Magistrate until otherwise directed by the court.  It was held that the court of the Chief Presidency Magistrate could direct the  accused to  cease  attendance in the Chief  Presidency  Magistrate’s court but it could not direct him to attend some other court which he had not undertaken to attend.  On’ the construction of  the bond it was found that the accused did not commit  a breach of the bond. Even if the appellant were permitted to raise this  question in the present case without any question of fact and purely on  the  construction of the bond it would appear  that  the appellant  bound  himself  to  produce  the  truck  whenever ordered by the court to produce the same.  Therefore,  there was  no  undertaking to produce the truck  in  a  particular court.   The undertaking was to produce the  truck  whenever ordered  by the court.  The undertaking was to the court  of the  Magistrate.  The_Magistrate exercises  jurisdiction  in the  whole  district  under  section  12  of  the   Criminal Procedure Code.  Furthermore, the bond provided that in case of  default  the appellant bound himself to forfeit  to  the Government the amount covered by the bond sum of Rs. 20,000. Therefore  purely on a construction of the surety  bond  the appellant  became  liable to the State for the  sum  of  Rs. 20,000 by reason of default to produce the truck when he was called  upon to do so.  The word ’court’ in the bond in  the present  case will mean the Magistrate’s court  which  dealt with the case. The appeal, therefore, fails and is dismissed. K.B.N.                     Appeal dismissed.

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