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  • M.P Saxena, J.
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  • sub-section (1) of S. 499 Cr. P.C
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  • M.P Saxena, J.
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  • sub-section (1) of S. 499 Cr. P.C
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Smart Summary

Structured Summary of the Opinion (Revision by Ranjit Singh)

Factual and Procedural Background

Ranjit Singh filed a revision application challenging the judgment and order dated 28-10-1976 of the IInd Additional Sessions Judge, Nainital.

Relevant factual and procedural chronology (as stated in the opinion):

  • 9-8-1974: The Supreme Court of India, in Criminal Misc. Petn. No. 1074 of 1974 (Criminal Appeal No. 32 of 1972), ordered that Boota Singh be released on parole for three months on furnishing security to the satisfaction of the District Magistrate, Nainital.
  • 12-8-1974: The parole order was received by the District Magistrate, Nainital; subsequently, it was determined the District Magistrate had no power under the new Code to take the bonds.
  • 17-8-1974: Counsel for Boota Singh applied before the Sessions Judge to direct the Chief Judicial Magistrate (CJM), Nainital, to release the accused on bail; the Sessions Judge directed that bonds be furnished to the satisfaction of the CJM.
  • 19-8-1974: The CJM ordered that Boota Singh furnish two local reliable sureties of Rs. 5,000 each and a personal bond of like sum for release on parole. On this day Ranjit Singh (the revisionist) and Amar Singh stood sureties and undertook to produce Boota Singh on 18-11-1974 (expiry of three months), failing which each would pay Rs. 5,000 to the State.
  • Boota Singh was released but failed to appear on 18-11-1974. On 19-11-1974 a bailable warrant was issued and notice sent to sureties to produce him on 9-12-1974.
  • 9-12-1974: Neither Boota Singh nor the sureties appeared; the CJM passed an order forfeiting the surety bonds and issued notices under Section 460 Cr.P.C. for 21-1-1975.
  • One surety (Amar Singh) claimed Boota Singh had surrendered and was detained at Kapurthala; the CJM made enquiries. The Superintendent, Kapurthala jail, informed that Boota Singh had been released on bail on 26-12-1974 and was not confined.
  • 21-1-1975 and subsequently 6-2-1975: Sureties filed applications alleging Boota Singh was hospitalised and later detained; they requested time to produce him but failed to do so. On 20-2-1975 the CJM directed payment of Rs. 5,000 each by the sureties and issued warrants for realisation.
  • The sureties appealed, arguing (in the lower appellate court) that no personal bond had been executed by Boota Singh and therefore the surety bonds were unenforceable; that appeal was dismissed.
  • Ranjit Singh filed the present revision. The revision challenged principally: (a) an apparent date ambiguity in the orders/bonds, (b) legality of a composite forfeiture/realisation order, and (c) enforceability of surety bonds in absence of a personal bond by the accused. He also sought reduction of the penalty claiming unavoidable circumstances.

Legal Issues Presented

  1. Whether the apparent ambiguity in dates (19-12-1974 vs 19-8-1974) concerning the bonds rendered the forfeiture or realisation order defective.
  2. Whether the Chief Judicial Magistrate's composite order (forfeiting the bonds and directing realisation of penalty) was illegal or invalid.
  3. Whether the surety bonds could be enforced in the absence of a personal bond executed by the accused (i.e., does absence of the accused's personal bond invalidate sureties' liability).
  4. Whether the sureties were given adequate notice and opportunity to show cause before realisation of the bond amounts.
  5. Whether the penalty amount should be reduced on account of alleged unavoidable circumstances (hospitalisation/arrest of Boota Singh) preventing production.

Arguments of the Parties

Revisionist / Sureties (Ranjit Singh and Amar Singh) — arguments advanced

  • There is an ambiguity about the date of the bonds: the CJM's order referred to bonds dated 19-12-1974 while the Sessions Judge referred to bonds dated 19-8-1974; hence it is unclear which bonds were forfeited and the clerical mistake casts doubt on enforceability.
  • The CJM passed a single composite order that both forfeited the surety bonds and directed realisation of the penalty; the composite nature of the order was alleged to be illegal.
  • No notice was given to the sureties to show cause why the bond amount should be realised from them.
  • No personal bond had been taken from Boota Singh; reliance was placed on Bekara Singh v. State of U.P. (AIR 1963 SC 430) and related authorities to contend that, in the absence of a personal bond by the accused, the bonds furnished by sureties could not be enforced.
  • On mitigation: that the penalty should be reduced because Boota Singh was allegedly hospitalised (heart trouble) and/or taken into custody at Kapurthala, making production impossible and constituting unavoidable circumstances.

What the record shows / Positions relied on by the court

  • The CJM's reference to the date 19-12-1974 was treated by the court as a clerical mistake; the bonds were in fact dated 19-8-1974 and contemplated production on 18-11-1974.
  • The court noted that show-cause notices had been sent and at least one surety had appeared and made representations; therefore, the contention of no opportunity to show cause was rejected.
  • On enforceability of surety bonds without a personal bond by the accused, the court relied on several precedents (detailed below) holding that surety bonds and the accused's bond are independent contracts and surety liability can be enforced even if the accused did not execute a personal bond.
  • The court found no evidence on the record to substantiate the claimed hospitalisation or earlier arrest that would excuse non-production; hence no reduction was warranted.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bekara Singh v. State of U.P. (AIR 1963 SC 430) Noted that sub-section (1) of S. 499 Cr.P.C. provides that before any person is released on bail a bond must be executed by such person and bonds also by sureties for attendance. The court observed that Bekara Singh does not expressly rule on the consequence if no personal bond is executed by the accused; it was relied upon by the revisionist but the court did not treat it as dispositive to invalidate surety bonds in the present facts.
Sripal Singh v. State (1953 Cri LJ 446) Holds that a bail bond by the surety and a personal bond by the accused under S. 499 Cr.P.C. are independent contracts; absence of the accused's personal bond does not render the surety's bond invalid; on forfeiture surety's liability can be enforced under S. 514. The court relied on this authority to support the proposition that surety bonds are enforceable even if the accused did not sign a personal bond.
Abdul Aziz v. Emperor (ILR (1946) All 238) Division Bench authority stating the surety guarantees attendance (not payment by accused); the contracts of surety and accused are independent; absence of accused's bond does not invalidate the surety's bond. Relied upon by the court (via Sripal Singh) to support enforceability of the surety's liability independent of any bond by the accused.
Bahar Husain v. State (AIR 1956 All 78) Reiterated the view that surety bonds can be enforced notwithstanding absence of a personal bond by the accused. The decision was taken as supporting precedent for the proposition that the surety's bond remains enforceable.
Moti Ram v. State of Madhya Pradesh (1978 SC Cri R 438) Held that the word 'bail' in S. 441(2) of the new Code means an own bond of the accused or the surety bond or both; nothing prevents release on bail upon furnishing either. Applied by the court to reinforce that the bonds furnished by sureties in the present case could not be held illegal or unenforceable merely because no personal bond by the accused was recorded.

Court's Reasoning and Analysis

The court addressed the revisionist's contentions in a structured manner:

  1. Date ambiguity: The court treated the CJM's reference to "19-12-1974" as a clerical mistake. It relied on the sequence of events recorded in the lower courts (application on 17-8-1974; bonds furnished on 19-8-1974; undertaking to produce on 18-11-1974) to conclude that the correct date of the bonds was 19-8-1974. Thus the claimed ambiguity did not create any legal uncertainty sufficient to nullify the forfeiture.
  2. Composite order (forfeiture and realisation): Although the CJM's order combined the forfeiture and the direction for realisation, the court held that no prejudice flowed from such a composite form. The bonds in law stood forfeited when Boota Singh failed to appear on 18-11-1974 (and formally by 9-12-1974 when notices were sent); the later order of 20-2-1975 merely directed realisation of amounts already forfeited. The court therefore rejected the contention that the composite order was illegal in substance.
  3. Notice to sureties / opportunity to show cause: The court found that show-cause notices had been issued (including proceedings under Section 460 Cr.P.C.) and that at least one surety appeared and made representations. The record therefore did not support the claim that the sureties were denied any opportunity to be heard before realisation proceedings; the court found no procedural infirmity on this ground.
  4. Enforceability of surety bonds without accused's personal bond: The court examined precedent. While it noted Bekara Singh's statement of the statutory requirement for the accused's personal bond, it emphasised a line of authorities (Sripal Singh; Abdul Aziz; Bahar Husain; and the Supreme Court's statement in Moti Ram) that treat the surety's bond as an independent contract enforceable even if a personal bond by the accused is absent. Applying those authorities, the court concluded the surety bonds in this case were valid and enforceable.
  5. Reduction of penalty / mitigation: The revisionist's plea to reduce the penalty on grounds of unavoidable circumstances (hospitalisation or arrest of Boota Singh) was rejected. The court emphasised there was no evidence on the record to substantiate that Boota Singh had been hospitalised as a heart patient or that he had been taken into custody prior to 18-11-1974 such that production was impossible. If any arrest took place subsequently, that would not be a mitigating circumstance for non-appearance on the stipulated date. Therefore, no reduction was justified.

Holding and Implications

Holding: The revision application was dismissed. The court upheld the forfeiture of the surety bonds and the order for realisation of Rs. 5,000 from each surety as directed by the Chief Judicial Magistrate and affirmed by the lower appellate court.

Implications:

  • Direct consequence: The order of the Chief Judicial Magistrate (forfeiture and realisation of Rs. 5,000 from each surety) and the decision of the lower appellate court were sustained; the sureties (including Ranjit Singh) remain liable for the amounts ordered.
  • No reduction: The court refused to reduce the penalty in the absence of supporting evidence for the mitigating circumstances asserted by the revisionist.
  • Doctrine affirmed: The court followed and applied existing precedents to restate the principle that a surety's bond may be enforced independently of whether the accused executed a personal bond; the decision applies these authorities to the facts at hand but does not purport to create any new principle of law.
  • Procedural form: The court treated clerical mistakes in dates and composite orders as not being fatal where the substance (forfeiture and opportunity to be heard) was established by the record.

Final disposal: Revision dismissed.

Show full summary ...

    Ranjit Singh v. State

    1. Ranijt Singh has filed this revision application against the judgment and order dated 28-10-1976 passed by the IInd Addl. Sessions Judge, Nainital.

    2. Briefly stated, the facts are that on 9-8-1974 the Supreme Court of India in Criminal Misc. Petn. No. 1074 of 1974 (Criminal Appeal No. 32 of 1972) released Boota Singh son of Kakka Singh on parole for a period of three months. The order read as follows:—

    “Boota Singh son of Eakka Singh be released on parole for a period of three months on the ground of ill health on his furnishing to the satisfaction of the District Magistrate, Nainital and this court doth further order that this order be punctually observed and carried into execution by all concerned.”

    3. As Boota Singh was confined in Haldwani Jail the order was received by the District Magistrate, Nainital on 12-8-1974. On 17-8-1974 the counsel for Boota Singh moved an application before the Sessions Judge, Nainital for directing the Chief Judicial Magistrate Nainital, to release the accused on bail. On the same day the learned Sessions Judge directed that the bonds be furnished to the satisfaction of the Chief Judicial Magistrate, Nainital, as the District Magistrate had no power under the new Code. On 19-8-1974 the Chief Judicial Magistrate appears to have passed the following order:

    “Let Boota Singh furnish two local and reliable sureties for Rs. 5,000/- each and a personal bond for the like sum for release on parole for three months as ordered.”

    4. On the same day i.e 19-8-1974 the revisionist and Amar Singh stood sureties for Boota Singh and undertook to produce him on 18-11-1974 i.e on the expiry of three months from 19-8-1974; failing which they undertook to pay a sum of Rs. 5,000/- each to the State of Uttar Pradesh. Boota Singh was released from Haldwani jail but did not appear on 18-11-1974. On 19-11-1974 the Chief Judicial Magistrate directed a bailable warrant of arrest to be issued against him and further ordered that notice be sent to his sureties to produce him on 9-12-1974. On this date neither Boota Singh nor his sureties put in their appearance, hence the Chief Judicial Magistrate passed an order forfeiting surety bonds; notices under S. 460 Cr. P.C were issued to the sureties for 21-1-75. In the meantime one of the sureties namely Amar Singh appeared and moved an application on his own behalf as well as on behalf of the other surety stating that Boota Singh had surrendered himself in the court of the Chief Judicial Magistrate, Kapurthala, Punjab in a case under S. 411 I.P.C He, therefore, expressed his inability to produce Boota Singh as he was detained in the jail. The Chief Judicial Magistrate Nainital sent a letter and wireless message to the superintendent District Jail, Kapurthala and to the Chief Judicial Magistrate of that place for detaining Boota Singh and to produce him before the Delhi High Court in appeal No. 22 of 1968 (Delhi Administration v. Boota Singh) as desired by that court. The Superintendent sub-jail Kapurthala by his letter dated 20-1-1975 informed the Chief Judicial Magistrate, Nainital, that Boota Singh had been released on bail by the Chief Judicial Magistrate on 26-12-1974 and was not confined in jail. On 21-1-75 the sureties moved an application before the Chief Judicial Magistrate, Nainital stating that they could not produce Boota Singh as the latter was admitted in the Government Hospital, Kapurthala on account of heart trouble and he was taken into custody on 24-12-1974. They, therefore, prayed that they may be discharged. This application came up for hearing on 6-2-1975 when the sureties gave another application to the effect that Boota Singh was already released from the jail and they did not know his whereabouts and prayed for one month's time to produce him, The Chief Judicial Magistrate, granted time up to 10-2-1975 but none turned up. The sureties also failed to show any cause why the amount of the bond be not realised from them. Therefore, on 20-2-1975 the Chief Judicial Magistrate, Nainital, directed the sureties to pay Rs. 5,000/- each as they had failed to produce Boota Singh according to the terms of the bonds. He also passed an order that warrants for realisation of this amount be issued. Feeling aggrieved by this order both the sureties filed an appeal and pressed only one point in the lower appellate court viz. that there was no personal bond by Boota Singh and in its absence the bonds furnished by the sureties were not enforceable. This contention was negatived by the lower appellate court and the appeal was dismissed. Now Ranjit Singh alone has filed this revision application. The learned counsel for the revisionist has pressed three main points before me. In the first place it is argued that the Chief Judicial Magistrate had forfeited the bonds dated 19-12-1974 while the learned Sessions Judge has referred to the bonds dated 19-8-1974. There is therefore, ambiguity about the bonds purported to have been executed by the revisionist and it cannot be said as to which bonds were actually forfeited. The venue for this argument was opened by the order of the Chief Judicial Magistrate in which he made a reference to the bonds dated 19-12-1974. Obviously the date mentioned was wrong. The bonds were furnished on 19-8-1974 as mentioned in the judgment of the lower appellate court. The judgment of the Chief Judicial Magistrate itself shows that Boota Singh was released on parole for a period of three months. An application to furnish bonds was moved from his side on 17-8-1974. The bonds were furnished on 19-8-1974 and it is for this reason that the sureties gave out in the bonds that they shall produce Boota Singh on 18-11-1974, i.e on the expiry of three months from 19-8-1974. Therefore, there can be no manner of doubt about the date of the bonds and no advantage can be taken from the clerical mistake existing in the order of the Chief Judicial Magistrate.

    5. The second contention of the learned counsel for the revisionist is that the Chief Judicial Magistrate had passed a single order forfeiting the surety bonds and directing its amount to be realised as penalty which was illegal. This contention is based on the operative portion of the order dated 20-2-1975 passed by the Chief Judicial Magistrate, Nainital, which reads as follows:

    “I, therefore, finally order that the surety bond dated 19-12-1974 of Amar Singh and Ranjit Singh be forfeited …… Let warrants for realisation of the penalty of Rs. 5000/- be issued against the aforesaid sureties Amar Singh and Ranjit Singh”

    It is true that the learned Chief Judicial Magistrate passed a composite order but in the circumstances of this case no advantage can be derived from it. In the body of the order the Chief Judicial Magistrate had himself observed that Boota Singh was released on parole for a period of three months and was to appear on 18-11-1974. He failed to appear on that date. Therefore, the bonds stood forfeited in the eye of law and no order to this effect was necessary. Moreover, notices were sent to the sureties to produce Boota Singh on 9-12-1974 and as they were unsuccessful in doing so the bonds were formally forfeited on that date (as observed by the Chief Judicial Magistrate in his order). If the bonds were forfeited on 9-12-1974 they could not be forfeited again on a subsequent date. It is thus clear that the bonds stood forfeited on 18-11-1974 and in any case on 9-12-1974 and the order of realisation was passed on 20-2-1975.

    6. It is also argued in this connection that no notice was issued to the sureties to show cause why the amount of the bonds be not realised from them. The order of the Magistrate makes it clear that show cause notices were duly sent to the sureties. One of them had appeared also and taken time to produce Boota Singh but in vain. He had also given out that Boota Singh was admitted in the jail at Kapurthala. On his representation a letter was sent to the Superintendent, Jail but he informed that Boota Singh had already been released. It cannot therefore, be said that the revisionist was given no opportunity to show cause why the amount of the bond be not realised from him. As a matter of fact he did not choose to show any satisfactory cause and the order passed by the learned Chief Judicial Magistrate does not suffer from any serious infirmity.

    7. Lastly it is urged that no personal bond was taken from Boota Singh and in its absence the bonds furnished by sureties could not be enforced. In this connection reliance is placed on the case of Bekara Singh v. State of U.P (AIR 1963 SC 430) in which it was held that sub-section (1) of S. 499 Cr. P.C provides that before any person is released on bail a bond must be executed by such person and bonds be also executed by sureties for the attendance of that person in court. There is no observation in this case as to what will be the position of the bonds furnished by sureties if no bond is executed by accused. On the other hand there are several decisions of this court laying down that the surety bonds can be enforced even if there is no bond by the accused. In Sripal Singh v. State (1953 Cri LJ 446) a learned single Judge of this court held that “a bail bond by the surety and a personal bond by the accused under S. 499 Cr. P.C are contracts independent of each other and the fact that the person released on bail did not himself sign the bond for his attendance when called upon to do does not make the bond executed by the surety invalid. Hence on forfeiture of the bond the liability of the surety can be enforced under S. 514. “Reliance was placed on a Division Bench decision of this Court in Abdul Aziz v. Emperor (ILR (1946) All 238) in which it was held that the surety does not guarantee the payment of any sum of money by the person accused who is released on bail but guarantees the attendance of that person. He is a surety for attendance and not a surety for payment of money. His contract and the contract of the person released on bail are independent of each other and the absence of bond by the person released on bail does not render the bond executed by the surety invalid.” A number of other cases decided by this court were also relied upon. This view was reiterated again in Bahar Husain v. State (AIR 1956 All 78). Recently this question came up for consideration before the Supreme Court in Moti Ram v. State of Madhya Pradesh (1978 SC Cri R 438) in which it was held that the word ‘bail’ in S. 441(2) of the new Code means as own bond of the accused or the surety bond or both. There is nothing in law to prevent him from being released on bail on furnishing his own bond or bonds of the sureties. In this view of the matter the bonds furnished by the sureties in this case cannot be held to be illegal or unenforceable.

    8. Lastly, the learned counsel for the revisionist has prayed for reduction of the amount of the penalty to be realised from the revisionist on the ground that he could not produce Boota Singh on account of unavoidable circumstances. These circumstances were his admission in the hospital as a patient of heart trouble and his arrest in Kapurthala. There is absolutely no ground for reduction because there is nothing on the record to warrant that Boota Singh was admitted in the hospital as a heart patient and it was not possible for him to appear before the Chief Judicial Magistrate, Nainital. Secondly, there is no material on the record to show that he was taken into custody and sent to jail in Kapurthala before 18-11-1974 rendering it impossible for him to appear in Nainital. If he was arrested subsequently that could not be a mitigating circumstance. I, therefore find absolutely no reason for reduction of the amount. The revision application is accordingly rejected.

    9. Revision dismissed.

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    Comments

    Ranjit Singh v. State
    (Mar 30, 1979)