STATE Vs. SHRI KALYAN
LAWS(RAJ)-1952-3-13
HIGH COURT OF RAJASTHAN
Decided on March 03,1952

STATE Appellant
VERSUS
SHRI KALYAN Respondents

JUDGEMENT

- (1.)THIS is a reference by the Additional Sessions Judge, Bundi. The City Magistrate Bundi by his order dated the 9th January 1951 forfeited the surety bond of one Kalyan to the extent of Rs. 250/- only. On appeal, the District Magistrate of Bundi on the 14th of March,1951 set aside the order of the City Magistrate on the ground that it was uncertain whether any personal bond was taken from the accused and as such the surety bond could not be forfeited. The learned Additional Sessions Judge on enquiry found that a personal bond was taken from the accused even though no action appears to have been taken against the accused as regards the forfeiture of the personal bond. The Additional Sessions Judge disagreed with the view of the District Magistrate and according to him both the personal bond and the surety bond were independent of each other and forfeiture of the surety bond should not be held to be illegal, simply because the personal bond was not forfeited.
(2.)IT seems there is a conflict of decision on the question as to whether the bond of the principal and surety is discharged by the payment of the amount by either of them. The Chief Court of Lower Burma in Emperor vs. Kaung Nga (1 Cr. L. J. 745), the Chief Court of Oudh in Abdul Sattar vs. Emperor (A. I. R. 1938 Oudh 195) and the High Court of Nappur in Namdeo V8. Emperor (A. I. R. 1938 Nag. 275) have held that the bond is discharged and that neither the surety nor the principal can be ordered to pay more, if neither of them has paid the amount of the bond. A contrary view has been taken by the High Court of Madras in Kulur Annappa Naick vs. Emperor (10 Cr. L. J. 294), the High Court of Lahore in Sardar vs. Emperor (A. I. R. 1937 Lah. 1937) and the High Court of Calcutta in Saligramsingh vs. Emperor (10 Cr. L. J. 99 ). The Allahabad High Court by a Full Bench decision in Narain Sahai vs. Emperor (A. I. R. 1946 All. 333 (has held that the liability of a surety under the security sections in chapter 8 of the Code of Criminal Procedure is not coextensive with that of the person bound ov:r but is a separate and independent liability to pay the amount agreed in the event of the person bound over committing a breach of peace or being guilty of misbehaviour. IT has further been observed in the majority judgment that the provisions relating to contracts of guarantee and surety's liability in chapter 8 of the Contract Act are wholly inapplicapable to such a bond by the surety. In the present case, it is not necessary to enter into this controversy as in this case there is no question about the co-extensive liability of the principal and the surety. No action has been taken against the principal so far and only the bond of the surety has been forfeited. The only question that has been raised is whether simply because no action has been taken against the principal the forfeiture of the surety bond can be regarded as illegal. Ordinarily even applying the principles of the law governing the cases of principal and surety a surety bond can be discharged if the principal has been discharged but in the present case the principal has not been discharged and no benefit can be claimed by the surety on this account. IT is still open to the court to take such action as is considered necessary against the principal. Under these circumstances, there can be no question as regards validity of the action taken against the surety bond on the ground of there being no action taken against the principal. The disputed question may arise only when the principal has been discharged or the principal has paid an amount in respect of his bond. In that event the question may arise whether it would be legal to order forfeiture of the surety bond as well when the amount has been paid by the principal. Where the principal has not discharged his liability or his bond has not been discharged in any other way there can be no question about the illegality of the forfeiture of the surety bond.
In our opinion, the forfeiture ordered by the learned City Magistrate of Bundi was according to law and it was not correct for the District Magistrate to hold it illegal, simply on the ground that it was not certain whether any personal bond was taken from the accused. The opinion of the District Magistrate that no acton could have been taken regarding forfeiture of the surety bond unless the personal bond of the accused had been forfeited also does not appear to be proper. The principal in the present case cannot be regarded as having been discharged simply on the ground that so far the Magistrate did not initiate any proceedings against him. As has already been observed above it is still open to the Magistrate to start proceedings regarding the forfeiture of the personal bond as well and simply on account of delay in taking an action against the principal no adverse inference can be drawn as regards the proceedings for the forfeiture of the surety bond.

This reference is accepted and the order of the District Magistrate is set aside and the order of the City Magistrate, Bundi, is restored. .



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