- (1.)THE applicant was granted bail of Rs. 1,00,000 (one lac) by this Court. One Ramkishore son of Shiv Kumar offered to stand surety for him and appeared before the Additional District Magistrate (Judicial) with a solvency certificate issued on the basis of the immoveable properry he owned. The Magistrate declined to accept him as a surety being of view that the solvency of rs. 1. 00,000 on the basis of moveables was required since on forfeiture of the bond the law contemplated attachment of moveables. Where immoveable property was offered as a security, the Magistrate said, it could only be done by mortgaging the property in the name of the Court. Aggrieved by this order, the applicant has come up in revision.
(2.)I am cited two authorities, one of the Lahore High Court reported in k. L. Gauba v. Emperor (AIR 1937 Lah. 411) and the other of the Allahabad High Court reported in Nisar Ahmed v. Emperor (A I R 1945 All. 389), which lend support to the Magistrate's view. Though in the Lahore case, Din Mohammad, J. did not finally decide whether the sufficiency of a surety could be ascertained only from the moveable property he possessed or whether his immoveable property also could be taken into account. His Lordship observed that "the Magistrate would be committing no illegality in insisting that in the light of the provisions laid down in section 514, criminal Procedure Code, that security alone could be termed sufficient which was backed by moveable property of the value of the amount secured. " in the Allahabad case, Malik, J. gave the dictum that where security of immoveable property was given, the bond required registration.
(3.)I find two rulings cited in Gauba's case, one of Reid, C. J. in King emperor v. Kaim Khan (18 P R 1906), wherein the learned Chief Justice remarked :
"as to sending the security on to the Tahsildar who is to report within ten days whether the person put on security and the surety have moveable property equal in value to the amount of the bond, the exclusion of immoveable property is obviously illegal and the learned Government Advocate has not attempted to defend it. "
And the other of Knox, J. in Hanhe v. Emperor (46 IC 295), with the following observations:
"while it is true that so long as surety is alive only moveable property can for default under section 514, Criminal Procedure Code, be attached and sold for recovery of penalty,, yet I agree with the learned Sessions Judge that if the house offered as security is worth rs. 500 and the surety is reported by the Tahsildar to be a respectable person, the security should be accepted. "
Din Mohammad,'j. did not comment on the correctness of these rulings. The trend of the authorities in general appears to be that the surety must be considered with reference to his properties both moveable and immoveable. The mere fact that the surety has got no sufficient moveable property, though he has ample immoveable property and that in case of breach of bond, the amount can under section 514 be recovered from moveable property alone, cannot justify the rejection of the bond. (Reference may be made to Hanhe v. Emperor (AIR 1918 All. 182) and Puma Chandra Chakrabarty v. Emperor (AIR 1916 Cal. 348 ).