A surety bond executed without the bond by the accused is not a valid bail bond and is not enforceable in the manner prescribed in the Code.

RAY, C. J.

( 1 ) THE petitioner (Gobinda Chandra Srichanar) has been declared to have forfeited the bail bond executed by him to ensure attendance of accused Bira naik in Criminal Case No. 389, started by Maguni Biswal of Dhenkanal. On 161-1950, which was one of the dates of hearing, the accused Bira Naik did not attend the Court, and the petitioner, his bailor, fully alive to his responsibility made a representation to the Court that the non-appearing accused was ill. The learned Magistrate did not accept the story of illness but however, was forced to adjourn the case to 30-1-1950. On that date, the accused appeared, and the bailor too appeared and filed a petition asking to be released from the liability govinda Chandra vs. State (04. 08. 1950 -ORIHC) Page 2 of 5 of bail bond. It appears from the record that one Banshi Naik executed a bail bond for Bira Naik on 3-3-1950. The petitioner was called upon to show cause why the surety bond should not be forfeited and the payment of Rs. 200 agreed under the bond to be paid in default of the accused's attendance in Court, should not be enforced.

( 2 ) BOTH the Courts below have disbelieved the story of Bira Naik's illness on 161-1950, and have found themselves not justified, on any reason whatsoever, to excuse the bailor from the liability.

( 3 ) MR. K. N. Das, the learned counsel for the petitioner, has attacked the proceeding as tainted with illegality. According to him, the suretyship should have, first of all, been forfeited, and then only he could have been called upon to show cause why payment of the amount undertaken should not be enforced. I do not quite follow this argument. If his argument is upheld it would mean that the surety bond should be forfeited without hearing the bailor. That can never be the intention of law. Before forfeiting the bond, the bailor should be given an opportunity to show cause. If he fails to satisfy the Magistrate as to the existence of any sufficient reason disabling him from fulfilling the terms of the bond, he is to be directed to pay. Mr. Das should maintain that at that stage he shall be given further opportunity to show cause. At present, I am not advised to express any opinion on this. But I find no irregularity in the proceeding.

( 4 ) BUT for reasons different from that placed before me, the payment should not be enforced, I have the bond before me. What has been undertaken in that bond is that the petitioner should appear in Court from day to day. It reads like this: "we the accused have been called upon to furnish securities with one surety of Rs. 200 each in the Criminal Case No. 389 started by maguni Biswal (Complainant) as against Lambodar Behera, and 5 others. I, therefore, agree that from today till the disposal of this case i shall appear in Court on 30-12-1949 and on all other dates to which the case is adjourned at 10 O' clock every day and in case I fail to appear I shall have to pay Rs. 1200. If I fail to pay, the State shall realise it by attaching and selling my properties. I execute the muchalike to this effect. Dated 14-12-1949, Sd. G. C. Srichanar. "

( 5 ) THE document contains a list of the names of the 6 accused persons. None of them has been made to sign this document by way of execution. This amounts to saying that the accused persons have not bound themselves to appear in court on condition of forfeiting the sum of Rs. 200 each. As it appears from criminal P C, Schedule V, Form No. XIII, there should be two bonds, one taken from the accused undertaking to appear on the dates of hearing on pain of forfeiting the bond of any amount fixed by the Court, and the other from the surety chosen by him (accused) undertaking, on accused's failure, to make good the sum forfeited by the accused and, for the matter of that, by him. I cannot conceive that without an accused himself executing a bond, any surety could be thought of. The very conception behind the word "surety" and the govinda Chandra vs. State (04. 08. 1950 -O