Madan Mohan Behareelal vs Emperor

Macpherson, J.—This is an application in revision against an order of the Sub-divisional Magistrate of Gaya forfeiting u/s 514, Criminal P.C., the surety bond of Rs. 3,000 entered into by the petitioner, an appeal against which to the Deputy Magistrate of Gaya with appellate powers resulted in the principal contention of the appellant, namely that he is not liable, in any circumstances, being negatived and the case being remanded to the Subdivisional Magistrate, to record evidence in respect of certain facts.

The facts which are not in contest are that one Ayub alias Chhakauri was arrested on 29th January last on a charge u/s 420, I.P.C., and on 5th February was released on bail of Rs. 3,000 with three sureties jointly and severally responsible. The sureties were the present petitioner and two mukhtars and the bond set out that they would produce Ayub on 18th February and subsequent dates of hearing before the Sub-divisional Magistrate. Nothing hangs on the terms of the bond which is admitted to be free from defect. Ayub was arrested by the police on another charge on 10th February but escaped next day and disappeared. On 18th February the sureties failed to produce Ayub and they were called upon to show cause why the amount of the surety should not be forfeited. Eventually the Magistrate proceeded against the petitioner alone in the first place, having regarded him throughout as the principal surety and the liability being joint and several. The petitioner raised various objections, but they were negatived by the Magistrate, who in the circumstances forfeited the whole amount of the surety. The result of the appeal has already been indicated.

On behalf of the petitioner Mr. Nandkeolyar has strenuously contended that the effect of the arrest by the police of Ayub on 10th February was to terminate the liability of the sureties automatically. Reference is made to the decision in Alauddin v. Emperor AIR 1925 Pat. 389 in which the surety had been unable to produce in Court an accused who was under arrest on a charge of dacoity in another province, the case where a person whom a surety was bound to produce had committed suicide. In re S. Vijiaraghavalu Naidu [1914] 37 Mad. 156 and Hunt''s case 90 E.R. 1696, where the person to be produced had se invito been removed to a foreign country by the King''s enemies.

These cases however are readily distinguishable. Here the petitioner was only temporarily under arrest. If instead of escaping from custody he had been released on bail to appear, say, on 1st March, it is obvious that the petitioners would not be relieved from their engagement to produce him before the Sub-divisional Magistrate on 18th February, though if he had remained in jail over 18th February, the act of law would have released them from their engagement to do so. Reference has also been made to Section 139, Contract Act, and it is urged that, as the surety is discharged when a creditor does any act which is inconsistent with the rights of the surety, so the sureties were here discharged because the police arrested a man who, under the orders of the Magistrate to whom the bond was given, was in the custody of these sureties and thereby did something to prevent the sureties from implementing the obligation to produce him on 18th February in accordance with their bond. The contention is not well founded. No doubt, if Ayub had been in jail or in police custody on 18th, the petitioner would consequently on an act of law have been unable to implement his obligation; but the mere fact that Ayub was under arrest for one day or less, between the date of the bond and the date when he must be produced in Court, would not be inconsistent with the custody of the sureties (assuming that "the custody of the sureties" is under the law in force in British India more than a mere expression) on the 18th when Ayub was at liberty. If he was by operation of law "in custody, of his sureties," and that custody temporarily ceased, he reverted to it when he escaped from the police. The important point is not mere arrest but confinement under arrest on the date when production is to be made, which makes such production impossible. The provision relied upon has in this instance no application.

To my mind the decision of the Courts below on the matter is correct and I find here no ground for interference in revision. It is next urged, though feebly, that the order of remand is bad. There is certainly no room for interference with it to the advantage of the petitioner. If the point on which remand was allowed, in this case of forfeiture of a bond for appearance in Court had come to me in revision, I would have adhered to the view expressed by me in Rajbansi Bhagat and Another Vs. Emperor, which is cited by the learned Sub-divisional Magistrate in his explanation, and held that there was no ground for interfering with the order of the Sub-divisional Magistrate. But there is equally no reason for interfering with the appellate order remanding the case to put on formal record in these proceedings certain facts relating to the matter though they were within the knowledge of the Court and indeed impliedly if not also expressly admitted by the petitioner himself.

It is next urged that the order of 31st August, where the Magistrate proceeded against the petitioner only, is improper. But the order itself shows that he directed the warrant to the petitioner in the first instance and the reason which he gave was that it was substantially on the surety of this big zamindar that he acted, having declined to accept the surety of the mukhtars alone. The liability being joint and several there was nothing improper in this order.

It is then urged that there should be some mitigation of the amount of surety forfeited. I am unable to accede to the contention. It is manifest that the petitioner for reasons of his own entered into a most risky engagement well knowing the character and extent of the risk which he was undertaking. The application being without merits this Rule is discharged.