A surety bond executed by a surety alone, without the accused executing a bond, is not enforceable under Section 499(1) of the Code of Criminal Procedure.

The question which arises in this revision application is whether a bond executed by sureties alone can be forfeited even though the accused who has been released on bail has himself not executed a bond as contemplated by Section 499(1) of the Code of Criminal Procedure. The question arises on the following facts.

2. Proceedings under Section 109 of the Code of Criminal Procedure were started against one Arjun son of Lala in the Court of the Sub-Divisional Magistrate, Ramtek Arjun, who was in custody had applied to the Magistrate that he should be released on his personal bond. This application was rejected. Thereafter, on 10-8-1971 the present applicant filed an application accompanied by an affidavit that he was willing to stand surety for Arjun and that Arjun should be released on bail. The proceedings before the Sub-Divisional Magistrate show that the Magistrate had passed an order accepting the bail bond executed by the present applicant. The order-sheet itself does not disclose as to what was the amount for which the bond was to be executed but there is on record a bond in Marathi in accordance with Form XLII of Schedule V to the Code of Criminal Procedure. Though the form has been filled in the name of Arjun and the printed matter in the form contains an undertaking that he would attend the Court whenever he is required to do so and that if he failed to attend, he shall forfeit, an amount of Rupees 500/- to the State, no care has been taken to sec that Arjun signed this undertaking or the bond. On the reverse of this form the present applicant, Mahadeo, has put his signature in token of his having executed the bond undertaking to see that the person released on bail would be present in Court whenever required to do so and that if he failed to attend, the applicant would forfeit the amount of Rs. 500/-. It was this bond executed by the present applicant that was accepted by the Sub-Divisional Magistrate by his order dated 10-8-1971. It is unfortunate that the Magistrate himself did not apply his mind to the question of acceptance of the bond, nor has he taken care to see whether the bond has been properly executed or not, nor has he specified the amount of the bond in his order. It is this slovenly dealing with the matter that has created difficulties in the way of the State in the enforcement of the bond which could have been easily avoided if the Magistrate had been a little careful. It appears that Arjun was present in Court on 23-8-1971 and requested lime for filing a statement. The case was adjourned to 10-9-1971 when Arjun remained absent, and in spite of repeated adjournments and issuing of a non-bailable warrant of arrest his presence could not be secured. Notice was, therefore, issued to the present applicant and when he failed to produce Arjun, the Sub-Divisional Magistrate passed an order on 16-8-1972 forfeiting the security of Rs. 500/- and directed that recovery proceedings should be started against the applicant surely. The applicant filed an appeal against the order of the Sub-Divisional Magistrate to the Additional District Magistrate, Nagpur, before whom it was urged, that the surety bond was not enforceable because Arjun himself had not executed any bond, and an alternative prayer was made that a part of the amount to be forfeited should be remitted. The learned Additional District Magistrate took a lenient view of the matter and modified the order of the Sub-Divisional Magistrate by reducing the amount to be forfeited to Rs. 300/-. The applicant has now filed this revision, application against that order.

3. The main contention which is raised on behalf of the applicant is that the surety bond executed by the applicant is unenforceable because Arjun had himself not executed the bond and the entire proceedings for forfeiture of the bond were without jurisdiction. There is a divergence of judicial opinion on the question whether the liability of the surety on the basis of a surety bond executed by h