Chanan Shah vs The State

Khanna, J.—This is a revision filed by Chanan Shah against the order of the learned District Magistrate, Ambala, affirming on appeal the forfeiture of the bail-bond of the Petitioner but reducing the amount of penalty payable by him from Rs. 500/- to Rs. 250/-.

The brief facts giving rise to the present petition are that one Parma Nand was arrested in a case u/s 61 of the Punjab Excise Act. He was released on bail by the police on the Petitioner standing surety for him in the sum of Rs. 500/-. The Petitioner in that connection executed bond on 9th August 1961 and it was recited in the bond that the Petitioner would produce Parma Nand ''Indal-talab'' (which means, according to the Urdu English Dictionary by J. T. Platt, "on demand") in Court, and in case of failure to do so would pay Rs. 500/- as penalty. Parma Nand did not appear in Court and a notice was issued to the Petitioner to produce Parma Nand. As the Petitioner failed to produce Parma Nand, his bond was forefeited and penalty was imposed upon him. A plea was raised on behalf of the Petitioner that the bond was defective but this plea was repelled.

I have heard Mr. Suri, on behalf of the Petitioner, and Mr. Har Bhagwan, on behalf of the State, and am of the view that the bond furnished by Petitioner was not in accordance with law and as such no penalty could be imposed upon him. Sub-section (1) of Section 489 of the Code of Criminal Procedure prescribes the mode on which a bond is to be executed, and reads as under:-

499(1) 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.

Perusal of the above provision of law goes to show that the time and place at which the accused is to appear must be mentioned in the bond. The requirements of law in this respect were not complied with in the bond which was got executed from the Petitioner because the place where he was to produce the accused was not mentioned. All that was stated was that the Petitioner would be produced in Court but neither the name of the Court was given nor that of the place where the Court was functioning. The date or time, on which the Petitioner was to appear before the Court, was also not mentioned. As the provisions about the imposition of the penalty and the forfeiture of a bond are penal in character, it is essential that they should be strictly followed and it is not open to any one to depart from those provisions. If, as in the present case, there is infraction of the above statutory provisions, no liability on the basis of the bond can be fastened on the surety. I may in this connection refer to case AIR 1936 243 (Nagpur) decided by Vivian Bose J. as he then was, the relevant head-note of which reads as under: -

Bail proceedings are special proceedings about which there are specific provisions in the Code and they must be strictly followed. S. 499 states that the time and place at which the accused is to appear must be mentioned in the bond and Cl (2), S. 499 says that if the accused is to appear in some other Court the bond must expressly say so. It is not open to the Court to depart from these provisions.

Where therefore there is no mention in a surety-bond of the Court in which the accused is directed to appear and all that is mentioned is that the surety undertakes to produce the accused in "the Court at B till the decision", it is impossible to enforce a vague and slovenly bond of this character. What the surety himself thought about his liability under the bond is immaterial, for the terms of the surety bond have to be determined by the language used in the bond itself. Also, it is not for the surety to show that the bond is illegal but for the Crown to show that the document, which it wishes to enforce against him, is one which can be so enforced under the law.

In Brahma Nand Misra v. Emperor AIR 1930 All. 682, it was observed that the mentioning of a definite Court before which the accused person is to appear is an essential condition of a bond in Section 499 of the Code of Criminal Procedure, and that in the absence of that no proceedings can be initiated u/s 514 of the Code against the person who had furnished the bond. To the similar effect are the observations made in Roshan Lal v. State AIR 1057 All. 765 , Gourishankar Chatterjee v. The King 194 D.L.R. 186 decided by Calcutta High Court and Balwant Singh and Another Vs. State, .

Mr Har Bhagwan has referred to case Mon Mohan Chakravarti and Another Vs. King-Emperor, but the facts of that case are clearly distinguishable as the sureties in that case undertook to produce the accused at the Sessions Court at Dacca wherever called upon to do so. It would, thus, appear that the Court and the place where the accused was to be produced had been specified in the bond in that case, while it is not so in the present case. another case cited by Mr. Har Bhagwan is Barbilas v. The State AIR 1952 M.B. 2 . Perusal of the facts of that case goes to show that on construction of the bail-bond it was held that the surety undertook to produce the accused before the Sub Divisional Magistrate concerned whenever and wherever called upon to do so. It would, thus, appear that the Court in which the accused was to be produced in that case had been specified. This circumstance distinguishes the facts of that case from those of the present case. Apart from that, the terms of the bond in the present case are quite different and, as stated above, the dictionary meaning of the word ''Indal-talab'' is "on demand". The undertaking by the Petitioner to produce the accused ''Indal-talab'' cannot be equated with an undertaking to produce an accused wherever and whenever called upon to do so.

I, therefore hold that the bond, which was furnished by the Petitioner, was not in accordance with law and as such no penalty can be imposed upon him under that bond.

The revision petition is consequently accepted and the order of the Courts below imposing penalty upon the Petitioner is set aside.