Netar Prakash vs State

Arun Kumar Goel, Judge.

Heard learned counsel for me parties and have also examined the record of the case. The sole ground urged by Mr. Kotwal in support of this

revision is that the bond, which was furnished by his client is not in accordance with the requirement of proforma prescribed under the code of

criminal procedure, 1989 (1933 A.D.), in form No. XLII of Schedule V appended to the said code. It was further urged by Mr.Kotwal that his

client had nowhere bound himself to forfeit to the Government the amount of suretybond. Reference in this behalf was made by him to the

bailbond, which was ordered to be forfeited by the trial court, which is on the file of the trial court at page 4 thereof. In this bond, the petitioner has

undertaken to deposit the amount of the bond, i,e. Rs 10,000/ in the Treasury of the Government of the State.

2 The bond furnished by the petitioner in case titled State vs. Raj Kumar and others., under section 307/34 RPC in the court of Additional

Sessions Judge, Jammu, being not inconformity with the requirement of law, is evident that there is nothing to show whereby the petitioner has

bound himself down to forfeit the amount of Rs. 10,000/ as has been ordered by the order of Additional Sessions, Judge, Jammu.

3 Question of forfeiture will only rise when there is a proper and duly executed bond as envisaged under law. Provision being penal in nature, strict

compliance therewith is required. Besides, this the, matter is no more resintegra in view of the decision of this Court reported in AIR 1958 J and K

38 (Balwant Singh And another, Applicants Vs. State, Nonapplicant), wherein the learned judge held as under:

(4) There is yet another point raised by the petitioner's learned counsel. In the bail bond it. is stated that in case the accused makes default in

appearance, then the surety would deposit Rs. 1500/in treasury out of his own pocket,. In this behalf the petitioners learned counsel has referred to

Form 42 of schedule in which the form prescribed is that ""in case the accused makes default in appearance, the surety bind himself to forfeit to His

Highness the Maharaja Bahadur (now Government of Jammu and Kashmir) the sum of ..."".

He submits that in the bail bond in question all that the petitioner has stated is that he would deposit Rs. 1500/ in treasury. This, in the submission of

the learned counsel, does not conform to the form prescribed by law. The mere fact, argues the learned counsel, that the accused has undertaken

to deposit money in treasury without mentioning which treasury to forfeit Rs. 1500/ to His Highness the Maharaja of Jammu and Kashmir (now the

Government). He has in this behalf referred me to state of U.P. Vs. Mohd Sayeed, (S) AIR 1957, SC 587 (D) wherein it has been held:

Where the surety had executed a bond in 1953, under S.499 Cr. PC. where he was to forfeit to ""the King Emperor QaisereHind"" a certain sum

of money if he made default in procuring the attendance of the accused before the court, and the bond was not one 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 was unknown to the

law of the Republic of India under the Code of Criminal Procedure when it was executed Section 514 of the Cr. PC. empowers a Court to forfeit

a bond which has been executed under the provisions of that Code and since the bond executed by the surety was not one under the Cr.P.C.

resort cannot be had to the provisions of S. 514 of the code to forfeit the same.

Applying the principles adurnherated in this authoritative pronouncement, to the facts of this case, I find that the bail bond executed by the surety,

Balwant Singh, does not fulfill the conditions provided by law. The bond should have contained in specific terms that the surety, in case of failure to

produce the accused, had bound himself to forfeit Rs. 1500/ to the Government of Kashmir. In the bail bond in question the petitioner has not at all

bound himself to forfeit the sum to the Government and all .that he has said is that he would deposit the sum in the Treasury. In the Supreme Court

ruling the undertaking was that the surety would forfeit to the King Emperor QaisereHind a certain sum of money, while in the observation of their

Lordships of the Supreme Court the binding should have been that the surety would forfeit the said sum to the Union of India. On this one point the

bond was held to be invalid and unenforceable under S.514, Cr.RC.

(6) Taking all this into consideration, I find that there is force in this revision application. I, therefore, accept this revision application and set aside

the order of forfeiture passed by the courts below.

In view of the aforesaid discussion, this revision petition deserves to be allowed and it is ordered accordingly. As a consequence whereof, order

dated 22.06.1996 passed by Additional Sessions Judge, Jammu in proceedings under Section 514 Cr.P.C. in case titled Robkar Vs. Netar

Prakesh, is hereby set aside. Amount of bond, if already recovered be refunded to the petitioner.