Pratap Narain and Another vs State

S.D. Singh, J.—This revision has been filed against the orders passed by Sri R.K. Sinha, Sessions Judge, Fatehpur, Under Sub-section (2) of Section 514 of the Code of Criminal Procedure.

Two persons Panna and Shital, were convicted u/s 397 of the IPC and sentenced to two years'' rigorous imprisonment thereunder. They filed an appeal in the court of the Sessions Judge, Fatehpur, and were ordered to be released on bail subject to their executing bail bonds in the sum of Rs. 3,000/- each with two sureties in like amounts. The two Applicants in this revision, Pratap Narain Misra and Ajodhya Prasad Misra, stood surety for Panna and on the necessary bonds having been executed, he was released from jail.

On 25-1-1966, the Sessions Judge fixed 21st March for the hearing of the appeal and the order proceeds on to say "vakil Appellant an suchit hon". On 21st March, counsel for the Appellants asked for adjournment but the application was rejected. The Sessions Judge treated the bail bonds as having forfeited and while he issued warrants for the arrest of Panna Appellant, he also issued notices against the sureties under the third paragraph of Sub-section (1) of Section 514 of the Code of Criminal Procedure, and on 20-4-1966, passed the order against which this revision has been filed.

When the Appellant before the Sessions Judge failed to appear on 21st March, and he decided to proceed against the sureties in connection with the same, it was necessary for him to follow the procedure prescribed u/s 514 of the Code of Criminal Procedure. Under Sub-section (1) aforesaid, whenever it is proved to the satisfaction of the Court that a bond has been forfeited, the Court has to record the grounds of such proof and it is thereafter that he can call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. The Sessions Judge should have, therefore, recorded the grounds on which he thought it was proved to his satisfaction that the bond had been forfeited. Instead of giving the grounds aforesaid all what the Sessions Judge said in his order dated 21-3-1966, was: "Appellants are absent. Their bail bonds are forfeited". This only amounts to stating a fact that the bail bonds had been forfeited. The Sessions Judge has in addition to mentioning that fact also to show by his order that it was proved to his satisfaction and the grounds of such proof were to be recorded in writing. If the Sessions Judge had applied his mind to the provisions of Section 514 aforesaid, he would have at once realised that there was something lacking in the record, as it would have been necessary for the Sessions Judge first to look into the contents of the surety bond and then to see whether any one of the obligations which the sureties had taken upon themselves had been breached by the non-appearance of the Appellants before him. To the extent I have been able to decipher the record there is nothing to indicate that the Appellants had notice of the date fixed for the hearing of the appeal. Nor is there anything to indicate that information of the date of hearing was communicated to the Appellants in the manner it is contemplated in the surety bonds. All what the Sessions Judge did was to inform the counsel of the Appellants of the date fixed for the hearing of the appeal. This intimation of the date to the counsel of the Appellants was enough by virtue of Section 433 of the Code of Criminal Procedure for the hearing of the appeal, but information to the counsel was certainly not an information to the Appellants before the-Sessions Judge for appearance before him on the date of hearing. If it was intended that information to the counsel of the date fixed for the hearing of the appeal was enough even for the purpose of the appearance of the Appellants in the Sessions Court during the hearing of the appeal, the Sessions Judge should have seen that the surety bonds which are signed by the sureties are drafted in that manner and contained a stipulation to that effect.

A penalty Under Sub-section (2) of Section 514 of the Code of Criminal Procedure can be imposed upon and recovered from the sureties only if there has been a breach of the surety bond executed by them and for that purpose the language of the bond has to be strictly construed. In this particular case I find that the surety bond, the prescribed form of which is not very easy to understand, was not even properly filled up. The Sessions Judge who forfeited the surety bond probably considered it no part of his duty to examine whether the bonds were properly prepared. The bond as it stands may be read as if the Appellants in the case were required to appear before the Magistrate or may be before the Sessions Judge, and even in the High Court. If the printed form was such as applied to all the three cases, it was the duty of the Magistrate, who approved the bonds to see that the words in the printed form which did not apply to the signing of the surety bond in this particular case were scored out and additional words added, if that was necessary.

Apart from this the relevant part of the bond signed by the Appellant Panna before the Sessions Judge reads:

Jabki summon athwa adesh dwara, jo uske niwas asthan Bhirakhpur Bindki par chhorh diya jae ahut kiya jae tatha yadi satra nyayalaya dwara upi tithi ke liye uchch nyayalaya aapekshit kiya jae....

To the extent the language extracted above could be interpreted or understood by the counsel on either side, all what Panna was required to do was to appear in court if summons or notice for his appearance was either left at his house or tendered to him or otherwise proclaimed or announced or brought to his notice. If nothing of the kind happened, Panna could not be held responsible for having absented himself from court and if he was not responsible at least for his appearance on 21-3-1966, even his sureties could not be held responsible for breach of the conditions of the surety bond at least for that day. All what the Sessions Judge did while fixing a date for the hearing of the appeal was to direct that the counsel for the Appellants before him be informed of the date of hearing. Panna did not stipulate while signing the bond that he would appear in court when notice for the hearing of the appeal alone was given to his counsel without there being any direction for his personal appearance at the time of the hearing of the appeal.

If the Sessions Judge had cared to comply with the requirements of Sub-section (1) of Section 514 which have been briefly referred to by me earlier in this judgment, namely, if he had cared to record in writing the grounds on the basis of which he thought it had been proved to his satisfaction that the bond had been forfeited, all these defects in the record would have come to his notice and he would have definitely hesitated in passing the order which he did on 26-3-1966. That is exactly the purpose underlying the procedure prescribed in Section 514. An order that a bond has been forfeited is not to be passed arbitrarily. The Judge or the Magistrate, who passes the order, has to apply his judicial mind to the facts of the case and then decide whether the bond has been forfeited. If that procedure had been followed by the Sessions Judge in this case, much of the time which was wasted by him and even of this Court would have been saved.

As no intimation of the date of the hearing of the appeal was given to Panna in terms of the language of the bond signed by him there was no forfeiture of the bond on account of his non-appearance on 21-3-1966 and consequently, therefore, the order which was passed by the Sessions Judge against the two Applicants on 20-4-1966, was also unjustified and wrong.

The application is allowed. The order of the Sessions Judge dated 20th April, 1966 is set aside.