- (1.) THIS is a revision petition by Ishar against an order of the District Magistrate of Jhunjhunu, dated the 30th of April, 1954, confirming on appeal an order of the Extra Magistrate of Jhunjhunu dated the 2nd of March, 1954 by which surety bond of Ishar for a sum of Rs. 2000/- was forfeited.
(2.) IN the case State vs. Jhabar and Remeshwar under sec. 394 I. P. C , Jhabar was released on bail on the 26th of December, 1952 and a personal bond was executed by him for Rs. 2000/- and a surety bond was executed by Ishar in the like amount. The accused, Jhabar continued to attend the court of the Extra Magistrate Jhunjhunu regularly upto the 25th of September, 1953, but failed to appear on the 20th of October, 1953. A notice was issued to Ishar by the Extra Magistrate to show cause why his surety bond be not forfeited and on the2nd of Mar. , 1954, he expressed his inability to produce Jhabar saying that the accused was absconding and it was not possible for him to procure his attendance. The learned Extra Magistrate thereupon record an order of forfeiture of the surety bond. An appeal was preferred by Ishar to the court of the District Magistrate, Jhunjhunu, which was dismissed on the 30th of April, 1954. In this revision petition it has been contended on behalf of Ishar that Jhabar was arrested at Calcutta in a criminal case on the 20th of February, 1954, and this fact had come to the notice of the learned Extra Magistrate at the time he made the order of forfeiture. The petitioner could not have produced the accused, Jhabar, on the 2nd of March, 1954, when he was called upon to produce him as the accused had already been arrested by the police on the20th of February, 1954. It may be noted that this ground was not taken by the petitioner in any one of the courts below and it is for the first time in this revision that it has been taken. It is argued that no date was specified in the bond for the appearance of the accused and unless the surety was informed of the date on which he was to produce the accused he could not be held liable to procure the attendance of the accused before the court and as it was for the first time on the 2nd of March, 1954, that the surety was informed to produce the accused when the accused had already been arrested by the police, the surety was not in a position to procure the attendance of the accused at that time before that court. The bond of Ishar in the present case runs as follows: "i, Isar S/o Lichhman Jat, resident of Bas Bai, hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the above said Jhabar Jat, that he shall attend the court of the Extra Magistrate, Jhun-jhunu, on every day of hearing or whenever he may be required to attend in the inquiry into the offence charged against him and in the court to which the case may be transferred and in case of his making default therein I bind myself (or we bind ourselves) to the forfeiture of Rs. 2000/- to the State of Rajasthan. Dated 30th December, 1952. (Thumb Mark by Isar) The point that arises is whether it was the duty of the surety to find out for himself the date fixed in the case that was going on against Jhabar so as to procure his attendance in court on such dates or whether it was the duty of the court to give the information to the surety of atleast the first day of hearing fixed in the case so as to enable the surety to procure the attendence of the accused before the court on that date and then to continue to take notice of further dates of hearing and to produce the accused regularly before the court in compliance with the undertaking contained in the surety bond. | It was argued by Mr. Chatterji on behalf of the State that the surety should have himself found out the date of hearing fixed by the court and it was for him to procure the attendance of the accused before the court on such date and on each date of hearing fixed thereafter. On the failure of the accused on the 25th September, 1953. the bond executed by him stood forfeited and the order of the court below is, therefore, just and proper. Mr Dutt on behalf of the petitioner on the other hand, has contended that the surety expected notice of atleast the first date of hearing and unless that notice had been given the surety could not be expected to arrange the attendance of the accused before the court, and he cannot, therefore, be held responsible if the accused made default in his appearance before the surety was given notice of the date of hearing fixed by the court in the case. No case law has been cited on the point that has been agitated before this court. Ordinarily, the terms of the surety bond should be looked at in order to find out whether it was the intention of the parties that the surety should himself find out the date or dates fixed in the case or he expected that he would be informed by the court of atleast the first date of hearing from which he can be held responsible to procure the attendance of the accused before the court on each subsequent date. It may be noted that the language of the bond, as has been reproduced above, is silent on the point whether it was the intention of the parties that the surety would himself find out the dates fixed in the case or that he expected that he would receive information from the court of atleast one date of hearing and thereafter he was to continue to find out the dates by being present at the time of the hearing of the case. The standard of a surety should be judged with that of a reasonable man. If by exercise of due diligence a surety could himself find out the date of hearing, he should be expected to know the subsequent dates of hearing fixed in the case and to procure the attendance of the accused before the court on such dates On the other hand, if the surety had to go out of his why to find out the dates he could expect the court to give information to him of the first date of hearing fixed in the case so as to enable him to find out the subsequent dates for himself by remaining present at such subsequent dates of hearing. The dates fixed for the hearing of criminal cases in the courts of the Magistrates are not published on the notice board of such courts in advance and the surety, therefore could not have found out the dates by looking at the notice or by exercising such care as can be expected of a reasonable man. As such a surety can reasonably expect that he would receive information from the court atleast of the first date of hearing where no date or time is specified in the surety bond for arranging to procure the attendance of the accused before the court and then to continue to procure such attendance on each date of hearing thereafter by taking notice of further dates of hearing as and when such dates were given by the court in the case. Turning to the facts of this case I find that the surety was not informed of any dates of hearing fixed in the case at any time till the 2nd of March, 1954 The surety bond was executed on the 30th of December, 1952, and the next date in the case was the 8th of January, 1953 which had been fixed on the 26th of December, 1952, and the surety could have had no notice of that date on the date when he executed the surety bond. No specific date was fixed in the bond itself and the undertaking given by the surety in the bond extended only to the production of the accused before the court on each date of hearing fixed in the case. Under the circumstances of this case when the surety expected to receive information from the court of atleast the first date of hearing fixed by the court in the case, the liability of the surety could arise under the bound for the production of the accused only when information was given to the surety of the date on which and the time when the attendance of the accused was required by the court and when no such information was communicated to the surety it would be too much to expect on his part to find out the date and time for himself to produce the accused. In this view of the matter the forfeiture of the surety bound in the present case could only take place on the 2nd of March, 1954, when the surety was called upon to produce the accused and not before it. The courts below have held that forfeiture of the bond took place on the 20th of October, 1953, when the accused failed to appear before the court. But in view of the fact that the surety received no notice of the date of hearing on the 20th Oct, 53 till 2nd of March 54, it cannot be held that forfeiture of he surety bond took place on the 20th of October, 1953. On the 2nd of March, 1954, when the forfeiture took place the accused was already in police custody and the explanation now given on behalf of the surety that it was not possible for him to produce the accused because he was in police custody, appears to be sufficient to exonerate him from his liability under the bond. This revision application is allowed and the order of forfeiture passed by the lower court is set aside. .;