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Case Number

Criminal Revn. No. 168 of 1950

Advocates

K.N.Das

Judges

Hon'ble Mr. Justice Bira Kishore Ray

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Smart Summary

Summary of the Opinion (as provided)

Factual and Procedural Background

The petitioner, Gobinda Chandra Srichanar, was called upon in consequence of a surety/bail bond he had executed to ensure the attendance of accused Bira Naik in Criminal Case No. 389 (complainant: Maguni Biswal) before the Magistrate of Dhenkanal. On 16-1-1950 the accused did not attend court. The petitioner, acknowledging his responsibility as bailor, represented to the Court that the accused was ill. The learned Magistrate did not accept the illness explanation but adjourned the case to 30-1-1960. On that adjourned date the accused appeared and the bailor also appeared and petitioned to be released from liability under the bond.

The record later shows that one Banshi Naik executed a bail bond for Bira Naik on 3-3-1950. The petitioner was called upon to show cause why his surety bond should not be forfeited and why the payment of Rs. 200 (agreed under the bond) should not be enforced for the accused's non-attendance. Both courts below disbelieved the illness explanation and found no reason to excuse the bailor from liability; the petitioner sought revision in the present Court.

Legal Issues Presented

Whether a surety/bail bond executed by a third party (the petitioner) is enforceable where the accused himself has not executed the requisite bond for appearance (i.e., whether the absence of an accused's bond defeats the surety's liability).
Whether the procedural approach to forfeiture — specifically the sequence and opportunity to show cause in relation to forfeiting a bond and enforcing payment — was legally correct as contested by the petitioner's counsel.

Arguments of the Parties

Petitioner's Arguments (by Mr. K.N. Das)

Mr. K.N. Das attacked the proceeding as tainted with illegality on procedural grounds, arguing that the suretyship should first have been forfeited and only thereafter the bailor called upon to show cause why payment should not be enforced. He implied that the sequence adopted by the authorities was incorrect.
The petitioner advanced the factual explanation that the accused was ill on the date of non-appearance (16-1-1950); this explanation was presented to the Magistrate as a reason for non-attendance.

Respondent / State's Position (as referred to in the opinion)

The learned Magistrate disbelieved the illness explanation and proceeded to treat the accused as non-attending, leading to the call upon the bailor to show cause and the orders complained of.
The Advocate-General (referred to by the Court) sought to construe the document so as to read the bailor's obligation as one to "cause the accused's appearance" rather than to appear personally; the Court considered and rejected this reading for the purposes of enforcing payment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wadhawa Singh v. Emperor, 29 Cr. L.J. 491 : 109 I.C. 219 : (A.I.R. 1928 Lah. 318)	Held that no provision permits a police officer or Court to take a third party's bond for an accused's appearance without taking an undertaking (bond) from the accused himself; such a bond is invalid and the third party incurs no legal liability if the accused absconds.	The Court relied on this decision to support the proposition that a surety's bond taken without an accused's bond is invalid and unenforceable.
Indar v. Emperor, 41 Cr. L.J. 958 : (A.I.R. 1940 Lah. 339)	The Court notes that in Indar's case Section 499 was not taken into consideration by the judges deciding it (as recorded in the opinion).	The present Court did not follow Indar on the point because it observed that Section 499 was not considered there.
Ahmed v. Emperor, A.I.R. 1945 All. 389 : (47 Cr. L.J. 209)	The opinion records that the Allahabad decisions (including Ahmed) failed to consider that if an accused remains at large without executing a bond, he cannot be said to have been released on bail; therefore those decisions did not fully engage Section 499.	The present Court declined to follow the reasoning of the Allahabad cases on that basis and disagreed with their conclusions on enforceability of surety bonds absent the accused's bond.
Abdul Aziz v. Emperor, A.I.R. 1946 All. 116 : (47 Cr. L.J. 528)	Grouped with other Allahabad decisions whose views were considered but not accepted; the Court noted the Allahabad judgments did not properly account for Section 499's requirements.	The Court considered but explicitly disagreed with the view in Abdul Aziz for the reasons stated in the opinion.
Baidynath v. Emperor, A.I.R. 1947 Pat. 68 : (48 Cr. L.J. 324)	Held that a bond by the surety alone was not contemplated by the Code and that there was no power in the Code to forfeit such a bond.	The Court described itself as bound by the view prevailing in the Patna High Court and relied on Baidynath to hold that a surety-only bond is not forfeitable under the Code.

Court's Reasoning and Analysis

The Court addressed both the procedural and substantive points raised.

On the procedural objection raised by Mr. K.N. Das (that the suretyship should first be forfeited and only then the bailor called to show cause), the Court rejected the argument as formulated by counsel. The Court explained that the law does not intend that a bond should be forfeited without hearing the bailor; rather, before forfeiting the bond the bailor should be given an opportunity to show cause. If he fails to satisfy the Magistrate as to any sufficient reason, he may be directed to pay. The Court found no irregularity in the proceedings on this ground.
The Court then scrutinised the bond/document itself. It noted that the document described obligations that the accused should appear "from day to day" and contained a list of six accused persons, but crucially none of the accused had executed the bond by signing it. The Court held that execution of a bond by the accused is imperative under Section 499 of the Code of Criminal Procedure and that a surety bond taken without a bond by the accused is not a bail bond within the Code and is unenforceable as such.
The Court set out and relied on the text of Section 499 (as quoted in the opinion) and explained the statutory scheme: one bond is to be taken from the accused conditioned on attendance for a sum fixed by the Court, and in the case of release on bail an additional bond by sureties is required. The surety's liability is secondary and contingent on the primary obligation of the accused. If the accused has not been made to execute a bond for appearance, the surety's liability cannot arise: without a principal bond there is no proper consideration for the surety's undertaking.
The Court also observed the practical consequences of not taking a bond from the accused: the accused remains at large without obligation to appear, thereby defeating the very purpose of the surety. The Court cited Wadhawa Singh and Baidynath to support the view that a surety-only bond is not contemplated by the Code and cannot be validly forfeited.
The Court considered, and rejected, the Advocate-General's suggested construction that the bailor had bound himself to "cause the accused's appearance" rather than to appear personally. Even if that construction were accepted, the Court held that because the accused had not executed any bond, the surety's liability never properly arose. The Court further noted that the petitioner (bailor) had in fact appeared on all dates required of him; accordingly, under the terms of the document the bailor had fulfilled what it required of him and could not properly be held liable.
Putting the above together, the Court identified two irremediable deficiencies: (i) no bond for appearance had been taken from or executed by the accused, and (ii) the bailor had performed his obligation to appear in Court from day to day and had not agreed to be liable to pay any sum for non-appearance of the accused. Therefore until the accused forfeits his bond of appearance, the question of the surety's liability does not arise.

Holding and Implications

Revision allowed.

Holding (direct effect): The Court set aside the orders of the courts below that had called upon the petitioner to make payment on forfeiting his bond. In the Court's judgment the petitioner is not liable to any penalty and the revision is allowed.

Implications: The immediate consequence is that the petitioner (bailor) is relieved from payment liability under the particular bond in question. The opinion rests its decision on the statutory requirement (Section 499) that an accused must execute a bond for appearance before a surety's bond can be treated as a valid bail bond; absent such a bond by the accused, the surety-only bond is unenforceable. The opinion does not set out any further, explicit pronouncement as to broader judicial or administrative consequences beyond the direct effect on the parties in this case.

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Govinda Chandra v. State Opposite Party.

1. The petitioner (Gobinda Chandra Sriohanar) has been declared to have forfeited the bail bond executed by him to ensure attendance of accused Bira Naik in Criminal Case No. 389, started by Maguni Biswal of Dhenkanal. On 16-1-1950, which was one of the dates of bearing, the accused Bira Naik did not attend the Court, and the petitioner, his bailor, fully alive to his responsibility, made a representation to the Court that the non-appearing accused was ill. The learned Magistrate did not accept the story of illness but however, was forced to adjourn the case to 30-1-1960. On that date, the accused appeared, and the bailor too appeared and filed a petition asking to be released from the liability of bail bond. It appears from the record that one Banshi Naik executed a bail bond for Bira Naik on 3-3-1950. The petitioner was called upon to show cause why the surety bond should not be forfeited and the payment of Rs. 200 agreed under the bond to be paid in default of the accused's attendance in Courts should not be enforced. Both the Courts below have disbeliever the story of Bira Naik's illness on 16-1-1950 and have found themselves not justified, on any reason whatsoever, to excuse the bailor from the liability.

2. Mr. K.N Das, the learned counsel for the petitioner, has attacked the proceeding as tainted with illegality. According to him, the suretyship should have, first of all, been forfeited, and then only he could have been called upon to show cause why payment of the amount undertaken should not be enforced. I do not quite follow this argument. If his argument is upheld it would mean that the surety-bond should be forfeited without hearing the bailor. That can never be the intention of law. Before forfeiting the bond, the bailor should be given an opportunity to show cause. If he fail to satisfy the Magistrate as to the existence of any sufficient reason disabling him from fulfilling the terms of the bond, he is to be directed to pay. Mr. Das should maintain that at that Stage he shall be given further opportunity to show cause. At present, I am not advised to express any opinion oo this. But I find no irregularity in the proceeding.

3. But for reasons different from that placed before me, the payment should not be enforced. I have the bond before me. Wast has been undertaken in that bond is that the petitioner should appear in Court from day to day. It reads like this:

“We the accused have been called upon to furnish securities with one ??? of Rs. 200 each in the Criminal Case No. 389 started by Maguni Biswnl (Complainant) as against Lambodar Behera and 5 others. I, therefore agree that from today till the disposal of this case I shall appear in Court on 30-12-1949 and on all Other dates to which the case is adjourned at 10 O'clock every day and in case I fail to appear I shall have to pay Rs. 1200. If I fail to pay the State shall realise it by attaching and selling my properties. I execute the Muchalike to this effect. Dated 14-12-1949, Sd. G.C Srichanar.”

4. The document contains a list of the names of the 6 accused persons. None of them has been made to sign this document by way of execution. This amounts to saying that the accused persons have not bound themselves to appear in Court on condition of forfeiting the sum of Rs. 200 each. As it appears from Code of Criminal Procedure of the Sch. V, Form No. XIII, there should be two bonds, one taken from the accused undertaking to appear on the dates of ??? on pain of forfeiting the bond of any amount fixed by the Court, and the other from the surely chosen by him (accused) undertaking, on accused's failure, to make good the sum forfeited by the accused and, for the matter of that, by him. I cannot conceive that without an accused himself executing a bond, any surety could be thought of. The very conception behind the word ‘surety’ and the Lability implied in that status as recognised by law is to reimburse the loss sustained by the principal on account of failure of performance on the part of the obligor. The principal (i.e, the State in this case) has double remedy—one against the principal obligor and the other against his surety. Not taking a bond from the accused period to appear on the dates fixed amounts to leaving him to act at his own option. If the accused is not bound to appear, there is no meaning requiring the surety to make him appear. It is well established in law that if the principal by his laches or otherwise releases the debtor from the liability sought to be assumed by the surety, his remedy against the surety is frustrated.

5. Execution of a bond is imperative under the Code. Section 499 of the Cr PC reads:

“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, and when he is released on bail, by one or more sufficient ??? conditioned that such person shall attend at the time and place mentioned in the bond, and bull continue so to attend until otherwise directed by the police officer or Court, as the case may be.”

6. The section contemplates two cases: one when the accused is to be released on his own bond, and the other release on bail. Execution of a bond by the accused is imperative, and in the case of release on bail, a bond by one or mora sufficient sureties has to be executed in addition. Mark that in the first part of the section the bond is to for such sum of money as the Court thinks sufficient, and with regard to the sureties' bond in the latter part of para (1) of the section, nothing is mentioned about the “sum”. This is because surety implies pre-existence of a fixed liability by the obligor (principal) and the surety is to undertake to reimburse the primary obligation. Hence for what sum the surety bond or bonds shall be executed is thereby pre-determined. Any surety bond executed without the bond by the accused is not a bail bond within the Code and is not enforceable in the manner ??? in the Code. Section 502 contemplates release of a surety without entailing release of the accused. If for some reason, the accused, the primary obligor, is released, the surety stands released without anything more.

7. It may be noticed that surety does not thereby acquire an overall control of the accused's person. He is to watch the movements of the accused, and, on apprehension that he may abscond, may inform the Court and seek release of his liability where upon be is not held bound to it but the accused is arrested, and on his arrest the surety is freed from the bond and stands discharged. Where the accused has not been made to execute a bond, the only control on the accused is non-existent and the found action of the security is knocked from its bottom. The result is unenforceability of the surety bond sail made security with sureties whereas the bond, referred to in the first proviso to S. 496, is a simple recognisance of the principal without any surety. The word “bail” is properly applicable to “security with surety” and not “surety without security.” In the case of Wadhawa Singh v. Emperor, 29 Cr. L.J 491 : 109 I.C 219 : (A.I.R(15) 1928 Lah. 318), it had been held under no provision of the law can a police officer or a Court take a third party's bond for the appearance of the accused without taking an undertaking (bond) from the accused himself. Such a bond is invalid and the person executing it incurs no legal liability if the accused absconds. I have considered in this connexion, the views of the Judges who decided the cases: Indar v. Emperor, 41 Cr. L.J 958 : (A.I.R(27) 1940 Lah. 339) ??? Ahmed v. Emperor, A.I.R(32) 1945 All. 389 : (47 Cr. L.J 209), and Abdul Aziz v. Emperor, A.I.R(33) 1946 All. 116 : (47 Cr. L.J 528). With the greatest deference, I would not agree with them. In Indar's case, (41 Cr. L.J 958 : A.I.R(27) 1940 Lah 339), S. 499 has not been taken into consideration. In the Allahabad cases, their Lordships have failed to consider that the accused, remaining at large without executing a bond, cannot be said to have been released on bail. To hold otherwise, would amount to setting the imperative provisions of S. 499 at naught. If the accused has not been released on bail, and has not undertaken to appear on pain of forfeiture of a bond for a certain amount, the consideration for the surety bond fails and the surety's liability is enlarged or subjected to greater risk than he shall be considered to have undertaken under the provisions of S. 499 without his consent. The surety's bond, therefore, becomes unenforceable. The Legislature has deliberately used the word ‘surety’ indicating that his liability is secondary Besides, on principle, I am bound, sitting in this Court, by the view prevailing in the Patna High Court. The point has been dealt with in the case of Baidynath v. Emperor, A.I.R(34) 1947 Pat. 68 : (48 Cr. L.J 324), where it was held that a bond by the surety alone was not contemplated by the Code and there was no power in the Code to forfeit such a bond.

8. In this view of the matter, even if I read this document in the manner in which the learned Advocate-General wants me to read, namely, that he did not bind himself to appear in Court but to cause accused's appearance, I should hold that on account of non-execution of a bond by the accused, the liability of the surety under the sort of bond did never arise. Secondly, if the State Government would insist upon the hidden or implied meaning under this document and should like to enforce the penalty, the bailor is entitled to demand his pound of flesh and to say that, in accordance with the terms of the document, he had appeared on all dates in Court. It having appeared from the record that though the accused did not appear the bailor did not fail to make his appearance, it has to be held that he has fulfilled the terms of the bond and he cannot be held liable.

9. There are two deficiencies in the case that are at the moment irremediable: (i) No bond for appearance has been taken from and executed by the accused: and (ii) that the bailor, bound as he is by the bond, has fulfilled its terms to the effect that he should appear in Court from day to day. He has nowhere agreed to be liable to pay any sum for non-appearance of the accused. The essentiality of the position is that until an accused forfeits his bond of appearance, the question of surety's liability does not arise. In the circumstances, I would set aside the orders of the Courts below calling upon the petitioner to make payment on forfeiting his bond. In my judgment, he is not liable to any penalty whatsoever. The revision is allowed.

R.G.D

10. Revision allowed.

Govinda Chandra v. State Opposite Party.

Summary of the Opinion (as provided)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (by Mr. K.N. Das)

Respondent / State's Position (as referred to in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Govinda Chandra v. State Opposite Party.

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