A.N. Bhatacharjee and Another vs Emperor

Dhavle, J.—This is an application in revision against an order of the District Magistrate of Purnea holding the two petitioners to a bond they had executed as sureties for one Kumar Singh Lal when the latter was arrested by an order of the High Court, apparently u/s 427, Criminal P.C., on the admission of an appeal by the Local Government against his acquittal in a trial u/s 211, I.P.C.

In the terms of the actual bond executed by the petitioners, they

declare ourselves sureties for Babu Kumar Singh Lal, who has been arrested on a charge of Section 211, I.P.C., in Government Appeal No. 6 of 1936, is respondent and do also undertake to produce the respondent before the Hon''ble High Court at Patna on 4th January 1937 and in case of our making default herein, we bind ourselves to forfeit to His Majesty the Emperor of India, the sum of Rs. 500.

There is no dispute that Kumar Singh Lal did appear before the High Court on 4th January 1937 so that no question arises on that part of the bond in which the sureties "do also undertake to produce the respondent...4th day of January 1937". The learned District Magistrate considered that the petitioners declaring themselves sureties for the respondent in the first part of the bond under, took to produce him whenever he was required, and be observes that this view would appear to be supported by the circumstance that no fresh bail was taken by Kumar Singh Lal from the Hon''ble High Court after his appearance before that Court on 4th January 1937. "If fresh bail had actually been necessary it is presumed that in that case it would have been, taken." There is however nothing to show that the matter was at all considered in this Court after the appearance of Kumar Singh Lal on 4th January 1937. The bond was taken from the petitioners on an old form the phrasing of which, as the learned District Magistrate observes, is not free from difficulty. If the first part of the bond in which the petitioners declared themselves sureties for Kumar Singh Lal is taken by itself, it would be impossible to define the obligations of the sureties. The second part on the face of it purports to be an additional undertaking by the sureties to produce the respondent before the High Court on 4th January 1937. But even so, it would be difficult to say with any confidence what undertakings were implied in the first part of the bond.

The learned Advocate-General has endeavoured to support the view of the District Magistrate by referring to the circumstances in which the police officer was charged with the execution of the warrant of arrest issued by the District Magistrate on the requisition of the High Court.

That warrant of arrest in accordance with Section 76, Criminal P.C., authorized the police officer to release Kumar Singh Lal if he

shall give bail himself in the sum of Rs. 500 with two sureties of the like amount to attend before the Hon''ble High Court at Patna on 4th January 1937, and to continue so to attend until otherwise directed by

the District Magistrate. This part of the order of the District Magistrate to the police officer who was to execute the warrant of arrest is perfectly dear, but it is not possible to read it into the bond that was actually taken by the police officer from the petitioners as sureties for Kumar Singh Lal. It has been repeatedly held that there can be no forfeiture of penalty in bail bond except on its own terms--see for example Bishambar Mahton v. Emperor (1930) 11 P.L.T. 578. It was no concern of the sureties to find oat what exactly it was that the police officer had been directed by the District Magistrate to do in the way of taking bail with sure, ties. Their liability must be determined by the agreement that was actually taken from them.

From this point of view, it cannot be said that the petitioners declaring themselves as sureties for Kumar Singh Lal in the first part of the bond undertook be produce Kumar Singh Lal before any authority on any date other than 4th January 1937. The form of the bond is plainly defective and the petitioners are entitled to the benefit of the defect. It has been brought to my notice by the Assistant Government Advocate who has had the matter looked into under the direction of the Advocate-General that the defective character of the bond has attracted the notice of the authorities and that steps have been taken to introduce a more suitable form. The view taken by the learned District Magistrate cannot be supported on the actual bond executed by the petitioners.

The application in revision is consequently allowed and the order of the District Magistrate set aside.