Dina Nath vs State

This is a revision application directed against the order of the Sessions Judge forfeiting the security of Dina Nath surety to the extent of Rs. 500 for

nonappearance of Vishwa Nath, accused appellant, in the Court of Sessions Judge on the date fixed for hearing of the appeal.

It appears that Vishwa Nath accused was convicted by the Munsiff Magistrate, Jammu, under section 379, R. P. C. and was sentenced to under

go two months' rigorous imprisonment with a fine of Rs. 100. He went up in appeal and during the pendency of the appeal an application for grant

of bail was moved on his behalf. The learned Sessions Judge released the accused on bail on execution of a bail bond by Dina Nath surety in the

amount of Rs. 500. The accused did not appear before the appellate Court on 26th June, 1963 which was the date fixed for hearing of the appeal.

The appeal was heard in his absence and he was acquitted. A notice was issued to the surety to show cause why the bail bond furnished by him be

not forfeited. Dina Nath surety filed various objections and among them he stated that the accused's mother was seriously ill and therefore he could

not appear before the Court on the 26th June, 1963 and that as the accused was acquitted he prayed that he be absolved from the liability under

the bond These objections did not find favour with the learned Sessions Judge and the bond was forfeited in the full amount of Rs. 500. Against

this order the surety has come up in revision to this Court.

It is argued on behalf of the petitioner that bail proceedings are special proceedings about which there are specific provisions in the Code and they

must be strictly followed. Time and place at which the accused has to appear must be mentioned in the bond and if they are not clearly mentioned

the bond is not enforceable. It is further argued that the accused must sign the surety bond otherwise it is not enforceable against the surety.

Section 499 (1), Cr. P. C. reads as under :

''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 the

Court, as the case my be.

It is quite clear from the terms of the above cited section that time and place where the accused has to appear must be specifically mentioned in the

bond and if they are not so mentioned the bond cannot be enforced against the surety. My attention has been drawn to the surety bond executed

by Dina Nath surety and it is argued that the surety had mentioned in the bond that he would deposit R?. 500 as penalty in the treasury of the

Government of Jammu and Kashmir which according to the counsel does not conform to the form prescribed by law. In support of this contention

reliance is placed on Balwant Singh Versus State, A. I. R. 1958 Jammu and Kashmir 38. This ruling is of no avail to the petitioner. In that case in

the bail bond it was stated that in case the accused make default in appearance then the surety would deposit Rs. 1500 in treasury out of this own

pocket. It was not mentioned therein which treasury he meant. Whether it was treasury of a bank or the Jammu and Kashmir Government

treasury. It was held in that case that the bond was vague and did not conform to the form prescribed by law and could not be enforced But in the

present case time and the place where the accused had to appear are specifically given in the bond and the surety undertook to deposit the amount

in the Government treasury in case the accused failed to appear before the court till the decision of his appeal. Therefore there was no vagueness

of any kind in the bond and it strictly conformed to the form prescribed by law.

It has been argued that the accused did not execute the bond for his appearance but Dina Nath surety alone executed the bond as a surety and it is

contended that the surety does not become amenable to the penalty contemplated by law in the event of this failure to produce the accused.

Reliance was placed on a Single Judge ruling of the Allahabad High Court, Brahma Nand Misra versus Emperor, A. I. R 1939 Allahabad 682

which lays down :

The provisions Laid down in S. 499 as to nature and contents of the bail bond are imperative. It is incumbent under S. 499 to get a bond

executed by the person who is released on bail and unless that is done there can be no valid bond by a surety alone. So al o the mentioning of a

definite Court before which the accused person is to appear is an essential P condition of such a bond. Hence no proceedings can be taken under

S. 514 on a bond executed by the surety alone and which mentions no definite Court and time before which the accused was to appear.

With great respect I find myself unable to agree with the view taken in the above ruling It is true that section 499, Cr. P. C requires a bond to be

executed by a surety and a personal bond by the accused. These are two independent contracts, one by the accused for his appearance and the

other by the surety undertaking to pay the amount mentioned in the bond is case the accused fails to appear before the Court If the accused does

not execute the bond for his appearance it does not invalidate the other bond executed by the surety for the payment of penalty on default of

appearance of the accused. In this view I am fortified by a Division Bench ruling of the Allahabad High Court, Abdul Aziz and another versus

Emperor, A. I. R. 1946 Allahabad 116 in which it is held :

Under S 499, Criminal P. C, the surety does not guarantee the payment of any sum of money by the person accused who is released on bail but

guarantees the attendance of that person. He is a surety for attendance and not a surety for payment of money. His contract and the contract of the

person released on bail are independent of each other. The fact that the person released on bail himself did not sign the bond for his attendance

when called upon does not make the bond executed by the surety an invalid one

The same view was taken in Sripal Singh and another versus The State, A I. R. 1953 Allahabad ""A bail bond by the surety and a personal bond

by the accused under S 499, Criminal P. C. are contracts independent of each other and the fact that the person released on bail did not himself

sign the bond for his attendance when called upon to do so does not make the bond executed by the surety invalid."" Liability incurred by the surety

under the surety bond on account of nonappearance of the accused before the Court must be enforced against the surety, otherwise any relaxation

in this behalf has the effect of inducing people to execute surety bonds without due sense of responsibility.

Lastly, it is contended that the surety was ordered to pay the full amount mentioned in the bond by the learned Sessions Judge which in the

circumstances of the case was excessive and it is prayed that the amount to be realised from the surety deserves considerable reduction. My

attention has been drawn to the fact that the accused had been attending the Court all along and it was only on one occasion that he failed to attend

which was due to the fact that his mother was seriously ill Moreover, it is stated that the appeal filed by the accused was heard in his absence end

he was acquitted. In the circumstances it is urged that substantial reduction in the amount be realised from the surety may be made. From the

record it appears that the accused had been attending the Court and it was only on the 26th June, 1963 that he failed to appear because of the

serious illness of his mother. The appeal filed by the accused was allowed and he has been acquitted by the learned Sessions Judge. Taking all

these circumstances into consideration I allow this revision application to the extent that the surety bond shall be forfeited to the extent of Rs 150

(rupees one hundred and fifty) only instead of five hundred rupees.