TYAGI, J - (1.) THIS is a revision application under sec. 439 Cr. P. C. filed by Abdul Rehman and three others against the judgment of the Additional District Magistrate, Jodhpur dated 22nd November, 1962 whereby he upheld the order of the City Magistrate, Jodhpur, dated 17th August, 1962 and confirmed the forfeiture of the bail bonds submitted by the four petitioners.
(2.) THE facts of this case are that a case under secs. 420, 200 and 120-B Indian Penal Code was registered by the Station House Officer, Police Station, Udai Mandir against four accused persons Raghubir Singh, Balbir Singh, Balhar Singh and Darsan Singh, and as a consequence thereof they were taken in custody of the police. THE police obtained the remand for these accused up to 27th December, 1961 but they were produced before the court with a prayer on 26th December, 1961, that they may be sent to the judicial lock-up. On 29th December, 1961 the police made a request to the court that the investigation in the case was not complete and, therefore, a remand of 15 days may be again granted. In the meantime, all the four accused persons applied for their release on bail and, the City Magistrate ordered that the accused persons may be released provided they furnish personal bonds in the sum of Rs. 2000/- and two sureties of Rs. 1000/- each, and the police authorities were also directed to file the challan on 15th January, 1962. All the accused furnished their personal bonds on 30th December, 1961, and each one of the petitioners stood surety for two accused persons for the amount of Rs. 1000/ -. THE surety bonds were also filed in the court of the City Magistrate on 30th December, 1s61 and the accused were ultimately released on bail. On 15th January, 1962 all the accused were present in the court of the City Magistrate, but the Challan could not be put up, and, therefore, the learned Magistrate passed an order that challan be put up on the 30th January, 1962. It may be noted that in that order learned Magistrate did not direct the accused persons to present themselves in Court on 30th January, 1962. On the next date also i. e. 30. 1. 62, the police could not put up the challan, and it was only Darsan Singh accused who was present in the court on that date. For the rest of the accused persons an application was moved by their counsel praying that their presence may be exempted for that day. The learned City Magistrate exempted the presence of the three accused persons but directed the counsel to produce them in court on the next date which was fixed as 5th March, 1962, and the police authorities were also directed to put up the challan on that date. On 5th March, 1962 it so happened that only two accused, Darsansingh and Balharsingh, were present in court and on behalf of the other two absentee accused, their counsel again submitted an application to excuse their absence for that day. The police failed to produce challan on that date also and, therefore, the learned Magistrate, while excusing the absence of the absentee accused persons, directed the counsel to produce those two accused on 24th March, 1962, which was fixed for filing the challan. It is alleged that on 24th March, 1962 all the four accused absented themselves and, therefore, the learned Magistrate passed an order forfeiting their personal bonds and surety bonds and a notice was issued to the sureties, that is, the petitioners to show cause why the penalty may not be imposed on them. The Court, also, issued bailable warrants for the arrest of the accused persons. All the four surety-petitioners filed their reply to the show cause notice issued to them but it so appears that only two out of them pursued the proceedings in the court. It may be mentioned that the accused did not take any action against the order of the Court directing the forfeiture of their personal bonds and therefore, I need not touch their case. In this revision petition I am concerned only with the forfeiture of the surety bonds of the petitioners on whom the penalty has been imposed by the court and they are required to deposit the full amount of their bail bonds as penalty. The reply was filed by the petitioners to the show cause notice and they were allowed to produce evidence in support of the averments made by them in their reply, but it appears that they failed to adduce any evidence before the court in support of their contention and therefore, learned City Magistrate by his order dated 17th August, 1962 directed that the full amount of bail bonds be recovered as penalty from Abdul Rehman and Hamid Khan only. He, however, did not pass any order in respect of the other two sureties Chand Khan and Rehmat Khan, but it is alleged that the proceedings for the realisation of the penalty imposed by the learned City Magistrate under his order dated 17th August, 1962 were started against all the four petitioners, and as a result of those proceedings, Chandkhan and Rehmat Khan were sent to civil prison where, they remained behind the bars from 6th December, 1962 to 9th January, 1963. An appeal was preferred against the order of the City Magistrate but the Addl. District Magistrate to whom it was referred for disposal dismissed the same by his judgment dated 22nd November, 1962. It is against these two orders that the petitioners have preferred this revision petition. The first argument of the learned counsel for the petitioners is that it is not specifically mentioned in the surety bonds as to in which court the sureties were to present the accused persons. Contention of the learned counsel is that at the top of the surety bond it has been mentioned only "first Class Magistrate's Court, Jodhpur". According to him, there are six First Class Magistrates who hold their courts in the City of Jodhpur, and each of them has been designated by number i. e. as First Class Magistrate No. 1, No. 2, etc. etc. and one of them is the City Magistrate and the other a Sub-Divisional Magistrate. The description of the court given in the surety bonds being defective and vague, it is urged that the bonds are rendered incapable of being executed against the petitioners. In support of his contention, he has referred to the authority of this Court in Tilumal Vs. State (1) and also Emperor Vs. Chintaram (2), Brahma Nand Misra Vs. Emperor (3) and Fateh Chand Wadhumal Vs. Emperor (4 ). In reply learned Deputy Government Advocate has, however, referred to another authority of this Court in Bhopal Singh Vs. The State (5) wherein the Nagpur, Allahabad and Sind authorities have been discussed. The surety bonds submitted by the petitioners undoubtedly do not contain the exact description of the court in which the petitioners were required to procure the attendance of the accused, but this vagueness about the name of the court in the bonds has not in any manner caused any impediment in the way of the petition to produce the accused in the court and it cannot be pleaded with justification that the part of the petitioners to produce the accused in the court was on account of this vagueness. It has been held in Tilumal's case (1) that the failure to mention the name and place where the accused was required to appear in the surety bond would invalidate the bond as its terms cannot be endorsed, but the circumstances of that case were quite different from those of this case. In the bond of that case the name of the court where the accused was to be produced by the surety was not disclosed and the bond was submitted in the court of the Magistrate First Glass No. 2 whereas the presence of the accused was thereunder required in the court of the Sessions Judge, Ajmer. Under these circumstances the accused failed to appear in the Court on the due date and the court had issued an order for the forfeiture of the surety bond. A plea, therefore, was taken by the surety that the name of the court was not mentioned in the bond and, therefore, the accused failed to attend the court on account of the vagueness in the bond about the name of the court. After discussing the circumstances of that case at length learned judge came to the conclusion that the non-mentioning of the name and place where the accused was required to appear had vitiated the bond itself and, therefore, it could not be enforced. It may be pointed out that in that case non-mentioning of the name of the court in the bond could create a misunderstanding about the court where the accused was required to appear as the bail bond was presented in the court of the Magistrate First Class whereas the accused under that bond was required to appear before the Sessions Judge, but that is not the case here. In the instant case the bail bonds were submitted in the court of the City Magistrate where the accused were required to appear under the bail bonds and on one occasion all the accused had appeared before that court. Under these circu-mstances there was no possibility on account of the mis-description of the court to entertain any doubt about the court where the presence of the accused was needed under the surety bonds. Learned counsel for the petitioner has also vehemently urged that the present case is covered on all fours by decision of the Nagpur High Court in Emperor Vs. Chintaram (2), wherein Vivian Bose J. , has held that "when a person executes surety bond under sec. 499, undertaking to produce the accused in a particular court there is no undertaking by him to produce him in any other court. Where therefore the surety fails to produce the accused in totally different court it does not amount to a breach of the bond and the surety cannot be held liable for that. " It may be mentioned that the circumstances of that case were also different from those of the instant case. In that case, the surety bond was produced before the court of the Sub-Divisional Magistrate, Janjgir and Katghora for producing the accused in the court of the Sessions Judge, Bilaspur. In that surety bond there was no mention of the court in which the accused was directed to appear and that portion of the printed form was left blank and it was mentioned in the bond that the surety would produce the accused in "the court at Bilaspur till decision. The learned Judge, under those circumstances, held that it was impossible to enforce the terms of the surety bond which was vague and slovenly incharacter. In Brahmanand Misra Vs. Emperor (3) the learned Judge has held "the mentioning of a definite court before which the accused person is to appear is an essential condition of a bond. Hence, no proceedings can be taken under sec. 514 Criminal Procedure Code on a bond executed by a surety which does not mention the definite court and time before which the accused was to appear". In Bhopal Singh's case (5), Modi J. , after discussing all the cases of Allahabad, Nagpur and Sind, has held that if the surety did not in any manner entertain any doubt as to where the accused was to be present the omission for not mentioning the initial date or the exact description of the court would not be of any importance if the accused continued to be present in the court which was wrongly mentioned in the surety bond. Learned counsel has also referred to a Supreme Court authority in State of Bihar vs. M. Homi (6), where their Lordships refused to forfeit the bond and observed that the terms of surety bonds must be construed very strictly as they contain penal clause and, therefore, if any penalty is to be imposed thereunder, it must be strictly in conformity with the terms of the bond. In that case sureties had bound themselves to the Government of Bihar in the sum of Rs. 50,000/- in the event they failed to produce within three days of the receipt of the notice of the order of the judgment of the Judicial Committee (Privy Council) provided by that order or judgment the sentence passed against the accused by the High Court was upheld either partly or wholly. After independence the jurisdiction of the Privy Council came to an end and after 26th January, 1950 the case was transferred to the Supreme Court of India, and the appeal was ultimately decided by the Supreme Court but on receipt of the notice of the decision of the Supreme Court the sureties did not produce the accused before the court in compliance with the requirements of the terms of the surety bonds and, therefore, the Deputy Commissioner called upon the sureties to show cause why their bonds should not be forfeited. It was under those circumstances that the surety bonds were ultimately forfeited and the sureties were required to deposit the penalty in the court of the Deputy Commissioner, Singhbhum and the matter went to their Lordships of the Supreme Court, who in the course of their judgment observed "that there is no room while construing the penal clause of a surety bond for the application of a legal fiction that the surety must be knowing about the changes that had taken place in the country and, therefore, the judgment of the Judicial Committee of the Privy Council should be deemed to be read as the judgment of the Supreme Court in the surety bonds. Basing his reliance on these observations of the Supreme Court learned counsel for the petitioners has vehemently urged that the terms of the surety bonds must be strictly construed and the penalty must be imposed only when the specific term of the bond has been violated by the sureties. In this case, according to his submission, there is no mention in the surety bonds that the sureties would produce the accused in the court of the City Magistrate, Jodhpur and there being about half a dozen courts of the First Class Magistrates, including that of the City Magistrate, it is not to read in the bonds that the sureties had undertaken to produce the accused in the court of the City Magistrate. In my opinion the circumstances of this case do not afford a ground for the petitioners to argue with any justification that they were in any manner misled by the misdescription of the court in the bond as to where the accused were required to be present. The surety bonds were submitted by the petitioners themselves before the City Magistrate and they were verified by him in their presence. Some of the accused also appeared before the City Magistrate on two dates. The vagueness in the description of the court in the bail bonds cannot therefore provide any excuse for the accused or for the sureties to say that they were doubtful about the court. In my opinion the defect of misdescription of the court in the bail bonds alone is not sufficient to avoid the penalty clause of the bond unless it is shown by the petitioners that such a misdescription was responsible for the failure of the accused to attend the court. In this case the sureties have not been misled by not giving the exact description of the court in the bonds; therefore it cannot be pleaded by the petitioners that the accused did not attend the court on account of the said defect. There is no doubt that where penal clause is incorporated in a document its terms and conditions should be strictly construed by the courts while imposing penalty thereunder but the courts cannot altogether forget the circumstance while enforcing the terms of the document that the defect, if any, in the terms of that document was not responsible for the sureties or the accused not to carry out their obligation under the bonds. It is next contended by the learned counsel for the petitioners that the court did not issue any notice to the sureties about the exemption that was granted to the accused for their appearance in the court on 30th January and 5th March, 1962, and therefore this unilateral act of the court had the effect of absolving the petitioners of all the obligations under the terms of the bail bond, and that the court is now left with no jurisdiction to impose any penalty in terms of the bonds. In my opinion this contention is without any force as on 30th January, 1962 when three of the accused did not appear before the court an application was moved on their behalf that their absence may be excused only for that day, and it was ordered by the learned Magistrate that they had been exempted for that day only from appearing in the court. Similarly the order of exemption was passed on 5th March, 1962 also. These orders of the learned City Magistrate cannot be interpreted in any manner except that the court preferred to condone the absence of the accused and did not propose to take any action to forfeit the surety bonds which it could otherwise have done. These orders did not in any way exempt the accused persons from putting their appearance before the court for any future date and thus neither the accused nor the petitioners can be deemed to have been relieved of their obligations under their bonds. In the end learned counsel for the petitioner has argued that the learned City Magistrate by his order of 17th August, 1962, imposed penalty only on sureties Abdul Rehman and Hamid Khan, but subsequently realisation proceedings were started against Chand Khan and Rehmat Khan also. It is really strange that without imposing any penalty the court started realising the same amount of penalty which was imposed on Abdul Rehman and Hamid Khan from Chand Khan and Rehmat Khan against whom no specific order was passed by the learned City Magistrate. During the course of arguments it has been vehemently urged that inspite of the fact that it was brought to the notice of the learned Magistrate that no order for imposing penally was passed against Chand Khan and Rehmat Khan the realisation proceedings continued against them and that the learned Magistrate sent these two petitioners to the civil prison, and they were kept behind the bars for over a month. It is really regrettable to note that without passing any order for imposing penalty by the court proceedings for its realisation were taken against Chandkhan and Rehmatkhan and the court did not even hesitate to send the two sureties to the civil prison. This act of the court is obviously illegal and deserves to be condemned. Judicial Courts, which are the custodians of the liberties of the people, are expected to function with eyes open. Such a reckless action of a judicial officer is likely to throw the entire judicial system into disrepute. It is all the more regrettable that the appellate court also did not take note of this illegality and cursorily disposed of the appeal.
(3.) UNDER the circumstances, revision petition of the two surety-petitioners Chand Khan and Rehmat Khan is allowed and the proceedings taken against them to realise the penalty under the bonds are quashed. It has been brought to my notice that after the show cause notice was served on the petitioners all of them rendered all possible help for securing the arrest of the accused persons and it is with their help that the accused were arrested soon after the order of forfeiting the bonds was passed by the court. This fact is admitted by the learned Asstt. Government Advocate also and he has conceded that there are mitigating circumstances present in this case to reduce the amount of penalty imposed on the other two sureties. I am of the opinion that the ends of justice will be served if a token penalty of Rs. 50/- each is realised from each of the two petitioners Abdul Rehman and Hamid Khan for the non-appearance of the accused persons in the court of the City Magistrate on 24th March, 1962. Their petition is, therefore, partly allowed. .;