- (1.) THIS is a revision by the surety Abdul Rehman against an order of forfeiture of his surety bond passed by the two courts below.
(2.) THE material facts are these. THE petitioner Abdul Rehman stood surety for the appearance of his son Gulam Mohammed in the court of First Class Magistrate (No. 1), Jodhpur City in connection with the prosecution of Gulam Mohammed under secs. 414, 457 and 380 I. P. C. THE necessary bonds were executed on the 20th July, 1953, On the 14th September, 1953, it was reported that the accused was absent as he was suffering from malaria and a medical certificate was produced in support of the same, and therefore, the case was adjourned to the 29th September, 1953. On the last mentioned date, counsel for the accused again prayed that the accused was confined to bed at Ajmer and, therefore, the case came to be adjourned to another date. THE court then fixed the case for the 12th October, 1953, and counsel for the accused was directed to produce the accused on that date. Meanwhile on the 9th October, 1953. the petitioner Abdul Rehman, surety, moved an application before the trial Magistrate that the accused (Abdul Rehman's son) had fallen in bad company and that it was impossible for the former to control his (accused's) movements and, therefore, he prayed for discharge of his surety bond and he further prayed that a warrant of arrest be issued against the accused for his production in court. Unfortunately, the Magistrate failed to take the only requisite step which was enjoined upon him by law, namely, to issue a warrant of arrest directing that the accused Gulam Mohammed be brought before him immediately. Instead the Magistrate passed an order on the same day in which he said that the date fixed for the hearing of the case was the 12th October, 1953, and that it was not possible to get the warrant of arrest served in such a short time and that the application be therefore put up on the 12th October, 1953, and the surety be directed to produce the accused without which, the learned Magistrate further pointed out - "the surety could not think himself free from the burden. " When the case was called on the 12th October 1953, both the accused and the surety were absent, their bonds were forfeited and apart from the notice issued to the accused, a notice was sent out to the surety to show cause why the penalty mentioned in the bond be not recovered from him. THE petitioner contested this notice and urged that he had already filed an application on the 9th October, 1953, praying for charge of his surety bond and for issue of a warrant of arrest against the accused Gulam Mohammed immediately but the court had somehow failed to issue the warrant and, therefore, he was not liable to pay any penalty in the circumstances of the case. By his order dated the 3rd February, 1954 the trial Magistrate rejected the objection of the surety and ordered the entire bond-money namely Rs. 2000/- to be recovered from the petitioner. THEreafter the petitioner went in appeal to the Additional District Magistrate who upheld the order of the trial Magistrate. Hence this revision. It is strenuously contended before me that the order of the courts below is illegal and cannot be sustained inasmuch as the Magistrate had failed to comply with the mandatory provision of law contained in sub-sec. (2) of sec. 502 Cr. P. C. , according to which on the application for discharge having been made by the surety, the Magistrate must have issued a warrant of arrest directing the accused to be brought before him. Learned counsel has placed his reliance on three cases in support of his contention. The first case cited before me is In re Anant Shivaji (l ). In that case the surety made an application to the Magistrate for discharge of his bond. The Magistrate received the application but asked the pleader to appear on the next following day to show its legality. The pleader failed to appear on the next day. Some four days afterwards, the surety appeared personally before the Magistrate and then the warrants were issued for the arrest of the accused but the warrants could not be served. Consequently the Magistrate ordered the surety to pay the penalty This order was upheld by the District Magistrate. On a revision to the High Court it was held that after the application for discharge of the surety bound had been received by the Magistrate, there was no opinion left to him but to act under sec. 5. 02 Cr. P. C. and he was bound to issue a warrant of arrest of the accused. It was further held that the presentation of such an application imposed upon the Magistrate the duty of issuing a warrant for the arrest of the accused and as this was not done, no order of forfeiture of the bond could have been passed. It was also observed that the failure of the pleader to appear on the next day could not and did not deprive the surety of his right to treat the bond as cancelled. With respect, I may point out that this last observation probably goes too far and it seems to me that if a warrant is issued at the proper time and the accused is still not produced before the court it may well be a question for consideration, dependent on the circumstances of each case, as to whether the surety is or would be entitled to have bis bond cancelled as of right or he would still incur some penalty for his failure to have produced the accused in a proper case. The next case is Gurumukh Singh vs. Emperor (2 ). This is a short judgment in which it was held that where a surety applied for the discharge of his bond and the arrest of the accused but no warrant of arrest was issued against the accused, the Magistrate was not competent to forfeit the bond. The last case on the point is the Maung vs. Emperor (3), in which Gurumukh-Singh's case (2) was followed. It was held that there was nothing in the Code to impose a duty on the surety to surrender the accused to the police (or, it may be added, to the court) if he felt that He was unable to carry out his obligation, and that the proper procedure was for the Magistrate, when moved by the surety for discharge of his bond, to issue a warrant for the arrest of the accused immediately for his production in court and that as this was not done, it would not be proper to impose any penalty on the surety. The result of the above discussion to my mind clearly is that where a surety applies for discharge of his surety bond, the law casts a duty upon the Magistrate to whom the application is made to issue a warrant of arrest directing that the accused be immediately brought before him. But where no such warrant is issued, the surety has almost an irresistible case and he can legitimately say that the Magistrate is not competent to for felt the bond without complying with the provision of law which provides that he shall issue a warrant of arrest against the accused. I may point out here that when a warrant is issued, one of two things may occur. In the first place, the accused may be produced or voluntarily surrender before the Magistrate in which case the Magistrate under sub-sec. (3) must direct the bond to be discharged and call upon the accused to find other surety or sureties, and in the event of his failure to do so commit him to custody. It may, however, be that even though a warrant has been issued, the accused has made himself scarce and does not appear in court. In such a case it seems to me that it will be a matter for the court to consider whether the surety has forfeited the bond or not and this question must fall to be , decided on the circumstances of each particular case. All this, however, properly arises for consideration where the Magistrate has, without loss , of time, issued a warrant of arrest directing the accused to be produced before him when the surety has moved the Magistrate for discharge of his surety bond. Where, however, the Magistrate for some reason or other fails to comply with the law as laid down in sub-sec. (2) of sec 502 and no warrant of arrest of the accused issued, it seems to me impossible to hold, either on authorities or on principle that the surety must still forfeit his bond. The principal reason to may mind is that the surety has, after all, no physical control over the movements of the accused except during the latter's good behaviour and as soon as the accused gets out of his control, he dose all that he can possibly do namely, that he reports the matter to the court and prays for issue of a warrant of arrest against the accused, and it is then for the court to render him assistance to have the accused produced before it. If the court fails to do what it is required by law, then the consequences of such failure cannot, in fairness, be visited upon the surety who has done all that he could do in the circumstances. Applying the principle deduced above, to the facts and circumstances of the present case, what do we find? On the 9th October, 1953, the surety filed an application to the Magistrate that the accused who was his son had gone out of his control and that he could not undertake any further responsibility to produce him in court and, therefore a warrant of arrest should immediately be issued against him. All that the court said on this application was something which I am not able to understand. It said in the first place that there was no time to serve the warrant before the 12th. Considering that the accused lived in Jodhpur, whether the court was also situate. I am disputed to think that there was no force whatever in view of the Magistrate. Then the Magistrate directed the surety to produce the accused on the 12th October which was the date of hearing ; but he failed to realise that the surety had already said that he had no control whatsoever over the movements of the accused, and considering all this, the only proper course for Magistrate was to have issued a warrant of arrest against the accused. This he failed to do with the result that the accused is still at large and is a fugitive from justice. It is true that a mere application for discharge by itself does not operate as a discharge of the surety from his obligation under the surety bond but, at the same time, where the Magistrate has failed to issue the warrant of arrest under sub sec. (2) of sec. 502 on being moved by the surety to do so, the case of the surety that if a warrant of arrest had been issued in time the accused could have been available is unanswerable and must prevail. For the reasons mentioned above, my conclusion is that the order of the two courts below is wrong and cannot be sustained. I therefore, allow this revision. The penalty if recovered shall be refunded. . ;