Puran Mal Aggarwal vs State
2002 Latest Caselaw 557 Del

JUDGMENT

K.S. Gupta, J.

1. This revision petition is directed against the order dated 7th May 2001 of an Additional Sessions Judge dismissing the appeal against the order dated 28th March 2001 of a Metropolitan Magistrate whereby amount of surety bond was sought to be recovered by issuing warrant of attachment against the property of petitioner-surety.

2. Facts giving rise to this revision, in brief, are that the petitioner stood surety for Sri Dev Mahto against whom FIR No.173/97 under Sections 279/338 IPC was registered at PS R.K.Puram and executed a bond in the sum of Rs.10,000/- before the police (I.O) on 28th February 1997. Since said accused was declared PO and petitioner too did not appear pursuant to the notice issued by Metropolitan Magistrate seized of the matter the amount of surety bond was sought to be recovered from the petitioner by issuing warrant of attachment of his property by the order dated 28th March 2001. Appeal taken out by the petitioner against this order was dismissed by the order dated 7th May 2001.

3. Only submission advanced by Sh.R.P.Yadav for petitioner was that as the bond for appearance of accused in court dated 28th February 1997 was executed by the petitioner not at the instance of court but at the instance of police officer, the same could not have bene validly forfeited under Section 446 Cr.P.C. and amount thereof recovered from the petitioner. In support of the submission, reliance was placed on the decisions in Rameshwar Bhartia v. State of Assam, and Surjit Singh, S.Kartar Singh v. State, 1966 Cr.L.J. 232.

4. On the issue in hand following para No.16 (at page 408) of Rameshwar Bhartia's case (supra) is relevant :-

"The other point taken on behalf of the appellant is a more substantial one. The security bond was taken from him not by the court but by the Procurement Inspector. It is true that it contained the undertaking that the seized paddy would be produced before the court, but still it was a promise made to the particular official and not to the court. The High Court was in error in thinking that Section 514, Cr.P.C. applied. Action could be taken only when the bond is taken by the court under the provisions of the code such as Section 91 for appearance, the several security sections or those relating to bail. Clause (i) of Section 514 runs :

"Whenever it is proved to the satisfaction of the court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the First Class, or when the bond is for appearance before a court, to the satisfaction of such court, that such bond has been forfeited, the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid."

The language is perfectly clear; the power to forfeit an the imposition of the penalty provided for in the later part of the section arise only if the preliminary conditions are satisfied."

5. Order of High Court sending back the case to Magistrate for taking action according to law under Section 514 was, thus, set aside.

6. Following the ratio in Rameshwar Bhartia's case in Surjit Singh's case (supra) the forfeiture of surety bond under Section 514 Cr.P.C. executed before a police officer by the petitioner for appearance of accused in court was held to be not valid.

7. To be noted that both the said decisions were rendered with reference to Section 514 of Old Criminal Procedure Code, 1898. Sub-section (1) thereof has been re-written and an explanation added thereto in corresponding Section 446(1) of Criminal Procedure Code, 1973. Said Section 514(1) read as under :-

"Whenever it is proved to the satisfaction of the court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the First Class.

or, when the bond is for appearance before a court, to the satisfaction of such court,

that such bond has been forfeited, the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid."

8. Above Section 446(1) which too is material, reads thus:-

"Where a bond under this Code is for appearance or for production of property, before a court and it is proved to the satisfaction of that court, or of any court to which the case has subsequently been transferred, that the bond has been forfeited.

or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any court to which the case has subsequently been transferred, or of the court of any Magistrate of the first class, that the bond has been forfeited.

the court shall record the grounds of such proof, any may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation:- A condition in a bond for appearance, or for production of property, before a court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any court to which the case may subsequently be transferred."

9. Provisions contained in Section 436(1) and 441(1) Cr.P.C, 1973 are also relevant. Section 436(1) provides that when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail. Proviso appended to sub section says that such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance. Section 441(1) interalia, provides that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by such person. A combined reading of both these sub sections would indicate that in bailable offence(s) a police officer on furnishing of surety bond has the power to admit an accused on bail. Such a bond for appearance of the accused in court being under the Code can be legally forfeited under Section 446(1) if the condition provided therein is satisfied and penalty imposed there under recovered. It is pertinent to note that under Section 514(1) of old Code of 1898 a surety bond taken by the court only could be forfeited and penalty imposed as held in Rameshwar Bhartia's case (supra). In view of change in language of Section 446(1) which corresponds to Section 514(1) of old Code it is not open to contend that a surety bond executed at the instance of police cannot be validly forfeited under said Section 446(1) and penalty imposed. In this view of mine, I am supported by the decision in Monit Malhotra v. The State of Rajasthan, 1991 Cr.L.J.806. Both the said decisions have no applicability in the matter and the petition deserves to be dismissed being without any substance.

10. Consequently, the petition is dismissed being without any merit.