Important Points
1. Against an order forfeiting bail bond second appeal is not maintainable.
2. Relaxation of condition of bail order would not absolve the liability of sureties to ensure presence of accused and sureties would be liable on forfeiture of bond.

Headnote:(i) Code of Criminal Procedure, 1973 - Section 449 - Appeal against order forfeiting bond-Whether second appeal maintainable-Order forfeiting passed by Magistrate - Appeal to Sessions Judge dismissed-Further appeal to High Court-High Court deciding appeal on merit-Held, second appeal maintainable-Supreme Court treated order of High Court as one passed in exercise of revisional jurisdiction. (Paras 6, 7 & 8)
       (ii) Code of Criminal Procedure, 1973-Sections 441 and 446-Bail bond-Liability of sureties-Modification of condition of bail order would not absolve liability of sureties-Hub of bail order is ensuring attendance of accused-Other conditions are only subsidiary thereto -Forfeiture of bond would entail penalty against each surety for amount which he has undertaken in bond executed by him.
       Any modification of the conditions of bail would not result in substitution of the bail order. The most essential element of the bail order is for ensuring the attendance of the accused in the court whenever required. In fact, that is the hub of the order and the other conditions are only subsidiary thereto. So long as that core postulate remains unchanged a surety cannot take advantage of any subsequent modification effected in respect of any other conditions. If a surety is not agreeable to abide by the modified conditions he must apply to the court under Section 444(1) of the Code to discharge him. Until the surety is discharged he is bound by the bond and any modification or even deletion of a condition of the order cannot absolve him from his liability in respect of the unaltered conditions. If there is forfeiture of the bond executed by the surety due to the default of the accused in making appearance before the court it is open to the court concerned to resort to the steps contemplated in Section 446 of the Code as against the sureties, besides the accused himself. (Para 12)
       The argument that where the bond was executed by the accused with two sureties that upper limit of the amount which the court can realise from both the sureties together cannot exceed the amount which the accused has stated in cannot be accepted. Forfeiture of a bond would entail the penalty against each surety for the amount which he has undertaken in the bond executed by him. Both the sureties cannot claim to share the amount by half. (Paras 13 & 14)
       (iii) Code of Criminal Procedure, 1973-Section 446(3)-Forfeiture of Bail bond-Liability of sureties-Remission of penalty-Accused a foreign national-Bond executed by sureties for Rs. 25,000-Accused jumping out bail and slipping to foreign country-Trial Court imposing penalty of Rs. 25,000 each on sureties-No allegation that sureties, connived with accused jumping out bail-Court could have imposed condition to surrender passport of accused to prevent him to escape out of India-Remission granted-Each sureties ordered to pay Rs. 5000 as penalty. (Para 15)

Judgment

Thomas, J.-Leave granted.

2. Two persons stood as sureties for bailing out a foreign national who was arraigned before a criminal court at Bangalore. But that foreigner, when released from jail, slipped out of India with the result that the two sureties are now in jeopardy. The criminal court proceeded against them for failure to produce the accused in court. The magistrate imposed a penalty of Rupees twenty five thousand on each of the sureties. They have been thenceforth approaching all the tiers of judicial hierarchy, one after the other, for escaping from the penalty and through that route they have reached this court now.

3. The accused, for whom the appellants became sureties, is one Mohan Dharmaraja. He was under indictment for the offences mentioned in Section 466 and 471 of the Indian Penal Code besides a few other offences under the Registration of Foreigners Act and The Passports Act, 1967. He was arrested on 26.11.1995 and remained in jail for nearly thirteen months until he was allowed to be released on bail as per the order passed by the Chief Metropolitan Magistrate, Bangalore City on 18.12.1996. The conditions for the bail, as per the said order, were the following :

(i) The accused should furnish a personal bond of Rs. 25,000/- and to furnish two local sureties for the same amount.

(ii) The accused should furnish his Bangalore residential address to the investigating officer.

(iii) The accused should not tamper with the prosecution witnesses.

(iv) The accused should not leave Bangalore City without the prior permission from the Bangalore City Police Commissioner, till the trial is completed.

4. On 21.12.1996 he was released when he executed a bond with appellants as his sureties. Subsequently he filed an application for relaxation of the conditions and the Chief Metropolitan Magistrate passed his order thereon dated 13.1.1997 in the following lines :

“The earlier condition No. 4 imposed on the accused is hereby relaxed. The accused is permitted to reside in Mysore City at the address furnished by him. However, the accused shall be present before the Commissioner of Police, Bangalore City once in a month. The accused shall be present without fail during the course of trial before the court at Mysore. Till the order is passed, the accused shall be present before the Nasarabad Police Station once in a week. During the remaining period, if the accused has to leave Mysore city he has to obtain prior permission from the Commissioner of Police, Bangalore. In this behalf the same has to be intimated to the Commissioner of Police, Bangalore.”

5. The Nazarabad police later reported to the magistrate that the accused was not attending the police station as per the order. The accused failed to be present in the court also. The efforts made by the magistrate to get the presence of the accused failed and then a notice was issued to the appellants to produce the accused in court as he was reported absconding. Appellants thereupon expressed their inability to produce the accused. The bail bonds were thus forfeited and each of the appellants was ordered to “pay the surety bond amounting to rupees twenty five thousand to the Government.”

6. Appellants preferred appeals, before the sessions court against the aforesaid order, but the Sessions Judge dismissed the appeals. Thereafter they filed further appeals before the High Court of Karnataka purportedly under Section 449 of the Code of Criminal Procedure 1973 (for short the Code). Surprisingly, the High Court entertained such second appeals and dismissed them on merits. Section 449 of the Code reads thus :

“Appeal from orders under Section 446.-All orders passed under Section 446 shall be appealable,-

(i) in the case of an order made by a Magistrate, to the Sessions Judge;

(ii) in the case of an order made by a Court of Session, to the Court to which an appeal lies from

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1999 Supreme(SC) 1281

Important Points1. Against an order forfeiting bail bond second appeal is not main­tainable.2. Relaxation of condition of bail order would not absolve the liabil­ity of sureties to ensure presence of accused and sureties would be liable on forfeiture of bond.

Cases Referred (2)

Important Points
1. Against an order forfeiting bail bond second appeal is not maintainable.
2. Relaxation of condition of bail order would not absolve the liability of sureties to ensure presence of accused and sureties would be liable on forfeiture of bond.