V. D. BHARGAVA, J.

( 1 ) THIS is an application in revision against an order of the Sessions Judge forfeiting the sureties of the accused who did not appear before the Court when he was trying the case. It appears that the accused had given surety bond when he was released on bail in the Court of the Magistrate, but later on he was ordered to be re-leased on bail on furnishing a personal bond and two sureties of Rs. 560/- each by the Sessions Judge. No further surety bond was executed by the applicant and the old surety bond continued. That was strictly not very correct and there should have been another surety bond executed by the accused.

( 2 ) THE accused did not come on the date of hearing and appears to have migrated to Pakistan. Thereupon the sureties were asked to produce the accused. But they failed to produce the accused and, therefore, their sureties were forfeited, one of the sureties, Rabat All, has come up in revision to this Court.

( 3 ) THE contention of learned Counsel for the applicant is that there being no surety bond of the accused himself, the sureties cannot be asked to pay the amount. It was contended that the sureties are liable only in the secondary stage. First the bond of the accused should have been forfeited and thereafter the sureties called upon to produce the accused and if they failed then and only then their bonds should have been forfeited. If there was no proper bond of the accused or there was no forfeiture of the bond of the accused, the proceedings for forfeiture cannot be taken. Reliance was placed by learned Counsel on the decision of this Court in Brahma Nand misra v. Emperor 41 Cri LJ 85 : AIR 1939 All 682 (A ).

( 4 ) THAT was a case decided by a single Judge of this Court where it was held that: it is incumbent under Section 499, Criminal P. C. to get a bond executed by the person who is released on bail and unless that is done, there can be no valid bond by a surety alone. I shall deal with this case later on as it has been dissented from in subsequent decisions of this Court The other cases on which reliance was placed are : Baidyanath Misra v. Emperor 48 Crl LJ 324 : AIR 1947 Pat 58 (B); Govinda Chandra v. State, AIR 1951 Ori 18 and Chamra Meher v. State of Orissa, AIR 1951 Ori 179.

( 5 ) THE last two cases are of Orissa High Court while the first is of the Patna High court. They supported the contention of learned Counsel for the applicant and are to the same effect as the decision reported in the case of Brahma Nand Misra (A) referred to above.

( 6 ) SUBSEQUENT to the case of Brahma Nand Misra there have been several cases of this Court, both bench decisions as well as single Judge decisions, and even before the case of Brahma Nand misra (A) there was a case Reoti Prasad v. Emperor AIR 1934 All 1046 (E) which had taken the view that "it is not necessary as a condition precedent that there should have been a bond executed by the accused himself.

( 7 ) IN Nisar Ahmad v. Emperor AIR 1945 All 389 (F) a single Judge of this Court followed an old decision of this Court, viz. AIR 1934 All 1046 (E) and dissented from the decision arrived at in 41 Cri LJ 85 : AIR 1939 All 682 (A ). It was held by Malik J. (as he then was): when an accused person has been released on bail merely on the undertaking of the surety and bond is executed by the surety, without the accused having been required to execute a personal bond, it may be that the officer or the Court has acted in an irregular manner and the accused should not have been released on bail, but the fact can in no way affect the liability of the surety who had Undertaken to produce the accused before the Court on the date or dates mentioned in the bond.

( 8 ) IN Abdul Aziz v. Emperor AIR 1946 All 116 (G) a Bench consisting of Allsop and Malik JJ. followed the decision in Nisar Ahmad v. Emperor, (F), and Brahma Nand Misras case (A) was again not followed. It was held: under Section 499, Criminal P. C. , the surety does not gurantee the payme

Click Here to Read the rest of this document