O.P. Anand vs State Through Customs ...
1989 Latest Caselaw 470 Del

JUDGMENT

P.K. Bahri, J.

(1) This criminal revision reached for hearing but no one appeared in this matter. I have gone through the files and the impugned orders and proceed to decide the matter on merits.

(2) The facts of this case are that the petitioner admittedly stood surety for an accused-Khazan Singh. The surety bond executed by the petitioner contained the term that he would produce the accused on every hearing of the case before any court in which said case was to come up for hearing till final decision of the case and on his failure to produce the accused, if called upon to do so, he undertook to pay a sum of Rs. 5,000.00 to the Government. From accused-Khazan Singa a recovery of 350 pieces of Swiss made watches of the value of Rs. 10,500.00 was effected. A complaint under Section 135 of the Customs Act was instituted. It is admitted fact that in spite of numerous efforts being made by the court concerned and numerous opportunities being provided to the petitioner, the presence of the accused could not be procured and he was declared proclaimed offender and statements of the witnesses were recorded under Section 512 of the (Old) Code of Criminal Procedure. It appears that the surety bond was forfeited and initially an order was made by Shri P. P. Sharma, Additional Chief Metropolitan Magistrate, New Delhi, on February 25,1976, imposing a fine of Rs. 5,000.00 . An appeal was brought against that order and the appellate court of the Additional Sessions Judge vide order dated July 23, 1979, had set aside the said order and required the Magistrate to proceed in accordance with law after following the necessary procedure. The impugned order was made by Shri S. M. Aggarwal, Additional Chief Metropolitan Magistrate, on February 12, 1980, by which he imposed a penalty of Rs. 4,00'0.00 on the petitioner after he had followed the procedure serving necessary notice on the petitioner and giving an opportunity of hearing to the petitioner. The appeal was filed against this order and the same came to be dismissed by the Additional Session Judge vide order dated August 5, 1980.

(3) The first point raised in the criminal revision is that as no particular name of the court or the date for appearance has been mentioned in the bond in question, thus, the bond on the face of it is vague and hence, is unenforceable. This contention appears to be devoid of any merit. After all the terms of the bond have to be seen in order to understand whether the surety was made aware or not as to what he has undertaken when he executed the surety bond. The matter was at the stage of investigation when the surety bond was executed by the petitioner and obviously at that time no case was pending in any court, so the question of giving any indication in the surety bond regarding the name of the court or the date of appearance, could not have arisen. The matter stands concluded by a judgment of the Supreme Court in State of Maharashtra v. Dadamiya Babumiya Sheikh, .(l) While referring to the provisions of Section 514 of the (Old) Code of Criminal Procedure, the Supreme Court has clearly laid down that a surety bond is executed for the purpose of ensuring the presence of the accused concerned in the court in which he is standing his trial at the hearing of the case and thus, a surety bond is a contract and it is question as to how far its terms can be considered to have been varied by any unilateral act. Each bond has to be construed on its own terms, and in some cases the bond requires a strict construction but in construing a surety bond the purpose and object of executing it must be kept in view. In the said case, the surety had undertaken to produce the accused before the court on a particular date or on any other date as the court may direct. According to the term of the surety bond, the accused was to appear before the Chief Presidency Magistrate on April 16, 1964, but. before that date a circular was issued by the High Court by which the said matter was transferred to the Miscellaneous Court. The question which arose for decision was whether by issuance of such circular transferring the case to Miscellaneous Court absolved the surety from complying with the surety bond or not ? The surety bond was forfeited by the Chief presidency Magistrate on failure of the accused to appear before the aid court on the date fixed. So, there arose some confusion as to the court in which the accused was to appear on that date and the High Court had set aside the order of forfeiture of the surety bond on that score and the Supreme. Court did not think it. a fit case to interfere under Article 136 of the Constitution. However, the Supreme Court made certain very pertinent observations, as to how the surety bond should be construed, in paragraph 7 and 8 of the judgment which I hereby reproduced : "A surety bond is a contract and it is a question as to how far its terms can be considered to have been varied by any unilateral act. Each bond, it may be pointed out, has to be construed on its own terms, But in con truing the terms of a surety bond for the production of an accused person, the purpose and object of executing it must be kept in view. Such a bond is executed for the purpose of ensuring the presence of the accused concerned in court in which he is standing his trial for a criminal offence at the hearing of the one. But for the execution of such a bond, the accused would have to remain in custody so that the trial may proceed smoothly. Looked at from this point of view surety bonds in criminal cases must be held to be designed to an extent to serve a public purpose. In some cases it is of course said that surety bonds call for a strict construction But the construction must not be so unduly strained as to result in defeating its essential purpose. Each bond has of course to be construed on its own terms, subject to what has just been stated."

(4) In the present case, there is a clear undertaking given by the surety that he would cause the accused to appear in a court in which the case may be fried whenever he is called upon to do so. So, a perusal of the terms of the bond shows that it was the duty of the petitioner to ensure the appearance of the accused in the court in which the case was being tried. Hence, it cannot be held that the surety bond in the present case is in any manner vague.

(5) In Ramesh Chandra v. The State of U.P. the facts were that the surety had undertaken to produce a particular case property (the truck) whenever the court was to call upon him to produce the same. It was held by the Supreme Court that the surety is duty bound to produce the said case property in a court where the case was to be tried. It was observed by the Supreme Court that purely on a construction of the bond it would appear that the appellant bound himself to produce the truck whenever ordered by the court to produce the same and, therefore, there was no undertaking to produce the truck in a particular court. The undertaking was to produce the. truck whenever ordered by the court and thus, the undertaking was to the court having the jurisdiction to decide the matter. In the Supreme Court upheld the forfeiture of the surety bond on failure of the surety to produce the truck whenever it was called upon to produce by the court trying the case.

(6) While admitting the criminal revision for hearing, a reference has been made in the order of admission to State of Gujarat v. Jethanand Kundomal, 1968 Cr. L.J. 1356. (3) I have gone through this judgment and find that it does not at all apply to the point arising in issue in this case. In the cited case, an interim bail had been granted by the Magistrate giving opportunity to the accused to approach the Sessions Court to obtain the regular bail. The interim bail order stood exhausted and thus, failure of the accused to appear after the interim bail order had exhausted itself did not amount to any breach of terms of the surety bond executed in compliance with the interim bail order passed by the committing court

(7) It is not necessary to refer to various judgments which find mention in the order of the Additional Chief Metropolitan Magistrate because, in my opinion, the matter stands concluded by the two judgments of the Supreme Court referred above.

(8) The petitioner had in categorical terms undertaken by executing the surety bond that the accused shall be produced before the court whenever the court was to summon the accused in that particular case. This term of the bond was breached inasmuch as in spite of various opportunities given to the petitioner by the court concerned, the petitioner failed to produce the accused. The power of criminal revision could not be. exercised in favor of such a petitioner. After all he had given a surety bond and the accused, who was to face the triai, had absconded and the whole purpose of obtaining the surety bond from the petitioner stood frustrated.

(9) I, hence, do not find any merit in this criminal revisions which I, hereby, dismiss. The file be sent back to the court concerned so that the amount of fine may be realised from the petitioner expeditiously.