- (1.) THIS is an application in revision against an order of the learned Sessions Judge, Ajmer directing recovery of penalty on forfeiture of surety bond executed by the applicant for the appearance of Mst. Iraka in that court. Mst. Iraka was convicted by the Magistrate First Class No. 2, Ajmer under sec. 9 sub-clause (a) of the Opium Act and was sentenced to six months' rigorous imprisonment. Against her conviction she preferred and appeal in the court of the learned Sessions Judge, Ajmer who allowed her bail on 7th April, 1960 on her furnishing a personal bond in the sum of Rs. 200/- and two sureties in the sum of Rs. 1000/- each to the satisfaction of the trial Magistrate. The applicant furnished his surety bond in the Magistrate's court on nth April, 1960 and Mst. Iraka was released on bail. The hearing of the appeal was fixed on 3rd May, 1960 but Mst. Iraka failed to appear on this date and the learned Sessions Judge, therefore, ordered the forfeiture of the personal bond and the surety bonds including the one furnished by the applicant. Notice was issued to the applicant to show cause why the penalty mentioned in the bond be not realised from him. The applicant appeared in that court and took time to produce Mst. Iraka. On the next date the applicant informed the court that he had come to know that Mst. Iraka died in a train accident at Garhi Harsaru Railway Station. The learned Sessions Judge was not satisfied with the explanation given by the applicant and doubted whether Mst. Iraka had actually died in the train accident. He, therefore, directed that the full amount of penalty be recovered from the applicant.
(2.) IN this revision application learned counsel for the applicant has invited my attention to the surety bond and has contended that it does not contain the name of the court and the time and place where Mst. Iraka was to appear and is executed in favour of Magistrate First Class No. 2 and therefore, there has not been any forfeiture of the bond for the non-appearance of Mst. Iraka in the court of Sessions Judge, Ajmer on 3rd May, 1960. IN support of his contention he has referred to Chiranjilal Vs. Thestate (1) Allabux Vs. The State (2) State of Bihar Vs. M. Homi (3) State of Utter Pradesh Vs. Mohammed Sayeed (4) and Roshan Lal Vs. State (1 ). I have examined the terms of the surety bond and there is no doubt that it does not contain the name of the court where Mst. Iraka was to appear. The applicant only undertook to produce Mst. Iraka on 3rd May, 1960 and on subsequent dates but the surety bond fails to mention the court where the accused was to be produced. It appears from the terms of the surety bond as if it was for the appearance of the accused before the Magistrate First Class No. 2 and it does not show that the accused was required to appear in the court of the Sessions Judge, Ajmer. In Emperor Vs. Chintaram (6) it was held that - "where therefore there is no mention in a surety bond of the Court in which the accused is directed to appear and all that is mentioned is that the surety undertakes to produce the accused in 'the Court at B till the decision' it is impossible to enforce a vague and slovenly bond of this character. What the surety himself thought about his liability under the bond is immaterial, for the terms of the surety bond have to be deter mined by the language used in the bond itself. Also it is not for the surety to show that the bond is illegal but for the Crown to show that the document, which it wishes to enforce against him, is one which can be so enforced under the law. " In the case of State of Bihar Vs. M. Homi (3) it was held that the terms of surety bond being penal in nature must be very strictly construed. Roshan Lal's case (5) is a case directly in point where the accused was released on bail by the Sessions Judge on his furnishing a personal bond for Rs. 1000/- with two sureties for the like amount to the satisfaction of the trial Magistrate. The surety bonds executed were really in the form prescribed in the Code of Criminal Procedure as Notice No. XLII in Sch. V of the Code which was a bond meant to be executed by a person at the preliminary inquiry stage before a Magistrate although the person had been convicted and was required to appear before the appellate court. Moreover, in the blank space where the court, where he was to be produced, was to be mentioned had been left blank. On the accused remaining absent before the appellate court sureties failed to produce him. It was held that - "the time and the place had to be mentioned in the bond and if the place of the court where the attendance was required was not at all mentioned, that surety bond will be invalid agreement. In omitting the name of the court where the accused was to be produced the bond was erroneous. " I am in respectful agreement with the view taken in the above cases and accordingly hold that the surety bond furnished by the applicant has not been forfeited. It is regrettable that proper care was not taken by the learned Magistrate while accepting the surety bond. If the surety bond had been properly examined the omission which has resulted in surety's escaping the penalty due to the non-appearance of the convicted person before the appellate court would not have occurred. This revision is therefore, allowed, the order of the learned Sessions Judge, Ajmer is set aside. .;