Shiv Ram vs State of Himachal Pradesh

Chet Ram Thakur, J.—These three criminal revisions raise a common point for determination and, therefore, they will be decided by a single judgment.

The Petitioners in all the three petitions had stood sureties for some Tibetians for their appearance in the court to stand their trial for offences u/s 61(1)(a) of the Punjab Excise Act, as applied to Himachal Pradesh. These bond were executed for their appearance in the court of the Sub-Divisional Magistrate, Ruhr, where the accused were to stand their trial for the aforesaid offences in each case. The accused persons failed to appear in the court and accordingly the Sub-Divisional Magistrate by his orders of the same date in all the three cases passed similar Order purporting to be u/s 514 of the Code of Criminal Procedure (shortly called the Code) forfeiting the surety bonds for Rs. 2000/- each and the amount in each case was ordered to be paid within 15 days failing which the same was ordered to be recovered by issue of warrant of attachment and sale of the movable property belonging to the respective sureties.

Although no appeal is provided against an order u/s 514 of the Code, nevertheless the Petitioner went in appeal to the District Judge, who affirmed the order and dismissed the appeals. Now in these revision petitions the only point that arises for consideration is whether the bond executed by the Petitioner in each case was one under the Code and therefore capable of being forfeited in accordance with the provisions of Section 514 of the Code.

The learned Counsel contends that the bonds could not be forfeited because the same were executed in each case in favour of the Government of India and as such they were defective and bad in law. He has cited The State of Uttar Pradesh Vs. Mohammed Sayeed, , Bhairon Lal Ramadhin Vs. State, and Ramsaran Singh and Ors. v. State of Bihar to show that the bonds executed in favour of the Government of India are not bonds in the eye of law. In fact in all the aforementioned cases the bonds were executed in favour of King Emperor and it was held that bail bonds executed in favour of His Majesty the King Emperor after adaptation made in consequence of Indian Independence is no bond. In the instant cases the bonds are executed in favour of the Central Government and the learned Counsel on the basis of the aforesaid authorities contends that these bonds being not in favour of the State Government could not be forfeited as the same are defective.

The learned Counsel appearing on behalf of the Respondent contends that these are valid bonds and if the same are executed in favour of the Government of India it will not affect the validity of the same. But, this submission of his does not appear to be correct. The bonds, in fact, are required to be executed under the provisions of Section 499 of the Code for appearance at a time and place mentioned in the bonds. In Schedule V of the Code there are various forms given and Section 555 of the Code provides that subject to the powers conferred by Section 554 and by Article 227 of the Constitution, the forms set forth in the Fifth Schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. Form XLII of that Schedule sets forth the contents of a bond to be executed by the accused and the surety. The form consists of two parts. The first part is for the bond to be executed by the accused and is to be signed by him, whereas the latter portion is meant for the sureties and the same is/are required to be signed by him/them. A perusal of this form would reveal that the accused as also the sureties bind themselves to guarantee the attendance of the accused in court whenever called upon to answer the charge against the accused and in case of default bind themselves to forfeit to the Government the specified sum of money mentioned therein. Before the Adaptation of Laws Order, 1950, the word "Government" did not appear in the bond and it was substituted by the Adaptation of Laws Order, 1950. The words in this Form XLII state that "in case of making default therein I bind myself to forfeit to Government the sum of rupees....". In these cases the words "Government of India" cannot be read for the Government of Himachal Pradesh. Section 555, as already stated above, provides that the forms prescribed in the Fifth Schedule may be used with such variation as the circumstances of each case require. In the amended Form XLV in Schedule V of the aforesaid Code the word is "Government" and not Government of India or the Central Government. Under the present Constitution, however, the State is a juristic person entitled to enter into contract and to sue or to be sued in the name of the State. Administration of Justice, the constitution and organisation of all courts except the Supreme Court and High Court is State subject included in List 2 of the Seventh Schedule of the Constitution of India and the amount of fine is payable to the State Government. Under the circumstances the surety bonds in these cases which were executed in favour of the Government of India are void and unenforceable and, therefore, the submission of the learned Counsel for the Petitioner appears to be correct that these surety bonds are defective in law and are unenforceable not having been executed in the name of the State Government.

Therefore, I allow these petitions and quash the orders of the court below. The amounts of surety bonds ordered to be forfeited, if already deposited, shall be refunded.