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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: MOHAMMED SAYEED

DATE OF JUDGMENT: 26/03/1957

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER BHAGWATI, NATWARLAL H. SARKAR, A.K.

CITATION:  1957 AIR  587            1957 SCR  770

ACT: Surety  bond-Undertaking  to forfeit sum of  money  to  King Emperor Qaisar-e-Hind on failure to Produce accused- Whether bond  legal and enforceable-Code of Criminal Procedure,  ss. 499, 514, and 555-Adaptation of Laws Order, 1950, cl. 4.

HEADNOTE: In 1953 the respondent executed a surety bond undertaking to produce,  the accused before the Magistrate and  to  forfeit Rs.  500  to King Emperor, Qaisar-e-Hind as  penalty  if  he failed  to do so.  Upon his failure to produce the  accused, the Magistrate forfeited the bond to the extent of Rs.  300. The contention of the respondent was that the bond not being in favour of the Government, could not be forfeited. Held,  that  the bond was a bond unknown to the law  of  the Republic  of India under the Code of Criminal  Procedure  at the  time of its execution and could not be forfeited.   The respondent did not execute a bond by which he bound  himself to  forfeit  the said sum either to the  Government  of  the Union  of India or that of the State of Uttar Pradesh.   To’ be a valid bond, the undertaking should have been to forfeit to  the Government and not to the King Emperor.   The  words King  Emperor  Qaisar-e-Hind  in the bond  executed  by  the respondent  could  not be read, by virtue Of cl.  4  of  the Adaptation of Laws Order, 1950, to mean Government.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 130  of 1955. I  Appeal under Article 134 (1) (C) of the  Constitution  of India  from the judgment and order dated March 11, 1955,  of the  Allahabad  High  Court (Lucknow Bench)  at  Lucknow  in Criminal Revision No. 60 of 1954 arising out of the judgment and order dated February 21, 1954, of the Sessions Judge  at Gonda in Criminal Appeal No. 292 of 1953. G.C. Mathur and C. P. Lal, for the appellant. 1957.  March 26.  The Judgment of the Court was delivered by IMAM  J.-This  is an appeal by the State  of  Uttar  Pradesh against  the  decision  of the Allahabad  High  Court  on  a

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certificate  granted by that Court that the case was  a  fit one for appeal to this Court, 771 The  undisputed  facts  are  that  one  Mohammad  Yasin  was prosecuted under s. 379, Indian Penal Code.  He was released on  bail.   The respondent along with one Ram  Narain  stood surety for him, having executed surety bonds under s. 499 of the  Code of Criminal Procedure, undertaking to produce  the accused  Yasin before the Court to answer the charge and  to forfeit  Rs.  500 each to King Emperor Qaisar-e-Hind  as  a, penalty  if  they  failed to do so.   Yasin  absconded;  All attempts to secure his presence before the Court were of  no avail.  Consequently notices were issued under S. 514 of the Code of Criminal Procedure to the sureties to     show cause why  their  bonds should not be-forfeited.  The  Magistrate’ after  giving  the matter his consideration,  ordered  their bonds  to be forfeited to the extent of Rs. 300  each.   The respondent  appealed  to  the Sessions Judge  of  Gonda  who dismissed  his appeal.  Dissatisfied with the orders of  the Magistrate  and the Sessions Judge, -the respondent filed  a criminal  revision in the High I Court and Mulla J.  allowed his  application and set aside the order of  the  Magistrate forfeiting the bond executed by him.  At the request of  the Government Advocate the learned Judge granted the  requisite certificate by virtue of which the present appeal is  before us. The  only  question for consideration is  whether  the  bond executed  by  the  respondent  was one  under  the  Code  of Criminal Procedure and therefore capable of being  forfeited in  accordance  with  the provisions  of  s.  514,  Criminal Procedure  Code.   Section 499 of the  Code,  requires  that before any person is released on bail or released on his own bond, a bond for such sum of money as the 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 person  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. In  Schedule  V of the Code of  Criminal  Procedure  various forms  are  set  out and a. 555 of the  Code  provides  that ,subject to the power conferred by s. 554 and by 772 Art.  227 of the Constitution, the forms set forth  in  that Schedule,  with such variation as the circumstances of  each case  require,  may  be used  for  the  respective  purposes therein  mentioned, and if used shall be  sufficient.   Form XLII  of that Schedule sets forth the contents of a bond  to be  executed by an accused and his surety.  The bond  is  in two parts-one part to be signed by the accused and the other part  to  be  signed by his surety or  sureties.   Both  the accused and the sureties in executing such a bond  guarantee the attendance of the accused in Court whenever called  upon to answer the charge against him and in case of default also bind  themselves to forfeit to Government the specified  sum of  money mentioned therein.  This is what the  bond  should state  since  the  Adaptation of  Laws  Order,  1950,  dated January  26,  1950.   ’Previous  to  that  Order  the   word Government  did not appear in the bond.  By virtue of cl.  4 of  the  said  Order, whenever an  expression  mentioned  in column 1 of the Table thereunder occurred (otherwise than in a  title or preamble or in a citation or description  of  an enactment) in an existing Central or Provincial Law  whether an  Act, Ordinance or Regulation mentioned in the  Schedules to  the Order, then unless that expression was by the  Order

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expressly  directed to be otherwise adapted or modified,  or to  stand  unmodified,  or to be  omitted,  there  shall  be substituted  therefor the expression set opposite to  it  in column,  2 of the said Table.  In column 1 of the Table  the words  " Crown " " Her Majesty " and " His Majesty "  appear and against them in column 2 the word ’Government"  appears. The plain reading of this clause is that wherever the  words "  Crown  ", "Her Majesty " or " His Majesty "  appear,  for them,  the word " Government " shall be substituted  in  the existing  Central or Provincial Laws mentioned in the  First Schedule  to -the Order.  The Code of Criminal Procedure  is one  of  the  Central Laws mentioned-in  the  said  Schedule wherein  Schedule  V of the Code of  Criminal  Procedure  is mentioned  and the Order directs that throughout Schedule  V of  the  Criminal  Procedure Code,  except  where  otherwise provided, for the words " Her Majesty The Queen 773 and  "His Majesty The King" the word "Government"  shall  be substituted.   Previous  to the Adaptation  of  Laws  Order, 1950,  there was the Adaptation of Laws Order, 1948 and  the words "Empress of India" appearing in the bond were repealed and  in place thereof the, words " Her Majesty the  Queen  " were  substituted.  India attained Dominion status  in  1947 and  became  a  Republic in 1950.  The  Adaptation  of  Laws Order,  1948  and that of 1950 were consequential  upon  the change  of status of India into a Dominion and then  into  a Sovereign  Republic.  Since January 26, 1950, therefore,  no bond  executed  in favour of the Empress of India  could  be said  to  be  a bond executed under  the  Code  of  Criminal Procedure.   The bond which the respondent had executed  was to forfeit to the King Emperor a certain sum of money if  he made  default  in procuring the attendance  of  the  accused before  the  court.  He did not execute a bond by  which  he bound  himself  to  forfeit  the  said  sum  either  to  the Government  of  the Union of India or that of the  State  of Uttar Pradesh.  The bond executed: by him in 1953 was a bond unknown  to the law of the Republic of India under the  Code of Criminal Procedure at the time of its execution.  Section 514  of  the  Criminal Procedure Code empowers  a  court  to forfeit a bond which has been executed under the  provisions of  that Code and since the bond executed by the  respondent is  not  one under the Code of  Criminal  Procedure,  resort could not be had to the provisions of s. 514 of the Code  to forfeit the same. It was, however, urged on behalf of the State that under cl. 4  of  the Adaptation of Laws Order, 1950, the form  of  the bond   stood  amended  by  the  substitution  of  the   word "Government"  therein in place and stead of the  words  "Her Majesty The Queen" and the bond should be read  accordingly. The  words King Emperor Qaisar-e-Hind must be deemed  as  no longer  existing  in the forfeited bond.  Clause  4  of  the Order, however, directs that the word "Government" shall  be substituted  for the words " Crown ", " Her Majesty " and  " His Majesty ". There is no mention therein of the words King Emperor  or  Emperor of India, Queen Empress or  Empress  of -India or Qaisar-e-Hind as being so 774 substituted.   The words King Emperor Qaisar-e-Hind  in  the bond executed by the respondent cannot therefore be read, by virtue of cl. 4 of the Order, to mean Government.  There has undoubtedly been some error,  carelessness or negligence  on the  part of those on whom a duty lay to make the  necessary changes in the phraseology of the bond set out in Schedule V of  the Code of Criminal Procedure to be executed  under  s. 499.  The fact, however, remains that the respondent had not

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bound himself either to the Government of the Union of India or  that  of  the State of Uttar Pradesh to  have  his  bond forfeited  on his failure to produce the accused before  the court and he is entitled to say that no order of  forfeiture could be passed against him with respect to a bond which was not one under the Code and which was one unknown to the law, as  contained  in the Code, at the, time of  its  execution. The  objection  raised  by  the  respondent  to  the   order forfeiting the bond executed by him is a substantial one and the  said  order was made under a, misapprehension  that  it could  be  made  under  s.  514  of  the  Code  of  Criminal Procedure. The appeal is accordingly dismissed. Appeal dismissed. 775