Back
1996 Supreme(MP) 489
1997 (1) JLJ 132
V.K. Agarwal, J.
Badrilal v. State of M.P.
Cr. Appeal No. 557 of 1986; Decided on 11.5.1996.
Headnote:(1) Criminal P.C., 1973 -- Ss. 446 and 193 -- surety undertaking to produce accused in Court where the case is transferred -- case committed to Court of Sessions -- surety is bound to produce the accused before the transferee Court. [Para 5
(2) Criminal P.C., 1973 -- S. 446 -- accused not executing personal bond for appearance -- surety is still liable for the bond executed by him. AIR 1963 Cal. 309 dissented from. AIR 1979 SC 1948 followed. [Paras 7 & 8
(3) Criminal P.C., 1973 -- S. 476 -- Sch. IInd Form 45 -- surety bond not in strict adherence to form No. 45 -- no column left unfilled -- bond may be filled in with variations -- ground not taken in trial Court -- cannot be allowed to be urged in appeal. AIR 1936 Nag. 243 and AIR 1957 SC 587 distinguished. [Paras 10 to 13
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 446 rFkk 193 && ekeyk tgk¡ varfjr fd;k tk, ml U;k;ky; esa vfHk;qDr dks is‘k djus dk izfrHkw }kjk ifjopu fn;k x;k && ekeyk ls‘ku U;k;ky; dks lqiqnZ fd;k x;k && izfrHkw varfjrh U;k;ky; ds le{k vfHk;qDr dks is‘k djus ds fy, vkc) gSA ¿ iSjk 5
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 446 && vfHk;qDr }kjk milatkfr ds fy, Loh; ca/ki= fu"ikfnr ugha fd;k x;k && rc Hkh izfrHkw vius }kjk fu"ikfnr ca/ki= ds fy, nk;h gSA , vkb vkj 1963 dydÙkk 309 folEerA , vkb vkj 1979 ,l lh 1948 vuqlfjrA ¿ iSjk 7 ,oa 8
¼3½ naM izfØ;k lafgrk] 1973 && /kkjk 476 && nwljh vuqlwph iz:i 45 && izfrHkwfr ca/ki= iz:i Ø- 45 ds vfrfu;efu"B ikyu esa ugha && dksbZ LraHk fjDr ugha NksM+k x;k && ca/ki= :iHksn esa Hkjk tk ldrk gS && vk/kkj fopkj.k U;k;ky; esa mBk;k ugha x;k && vihy esa mBk;k ugha tk ldrkA , vkb vkj 1936 ukxiqj 243 rFkk , vkb vkj 1957 ,l lh 587 izHksfnrA ¿ iSjk 10 ls 13
1. This appeal has been preferred under section 449 of Cr.P.C. against the order dt. 12.9.86 ordering recovery of amount of Rs. 5,000/- from the appellant/surety in M.J.C. No. 20/86 of the Court of IInd A.S.J. Mandsaur.
2. The facts leading to the present appeal are that, in S.T. No. 35/86 pending in the Court of IInd A.S.J. Mandsaur, the appellant Badrilal had stood surety and furnished surety bond for an amount of Rs. 10,000/- for accused/Ramchandra, s/o Nagjiram, in pursuance of the order dt. 30.5.85 of High Court, as would appear from the surety bond filed in the record of the lower Court. His surety bond was accepted by the Court of CJM, Mandsaur. By the said surety bond, the present appellant/surety had undertaken to keep the accused/Ramchandra present in the Court of J.M.F.C. Naraingarh and also in other Courts where the case may be transferred on 14.6.85 and thereafter on subsequent dates, till judgment. It is not in dispute that, the accused/Ramchandra for whom the present appellant stood surety did not appear in the Sessions Court on 15.4.86. Therefore, the bail bonds and personal bonds were ordered to be forfeited and notice was issued to the appellant/surety to show cause as to why the amount of bond may not be recovered from him. The appellant/surety filed his reply. After consideration of the reply and hearing the parties by the impugned order, the learned IInd A.S.J. Mandsaur ordered that an amount of Rs. 5,000/- may be recovered from the appellant/surety.
3. In the present appeal, it has been mainly urged on behalf of appellant/surety that, the bond was defective and was not in the proforma as prescribed by form No. 45 of Schedule II of Cr.P.C. It was also urged that, by the said bond the appellant/surety had undertaken to keep the accused/Ramchandra present in the Court of J.M.F.C. Naraingarh and in such Courts where the case may stand transferred. However, since the case was committed to the Court of Sessions, it cannot be deemed to have been transferred to that Court and therefore, the surety was not bound to keep the accused present in the Court of Sessions. It has also been urged that, the personal bond of the accused has not been forfeited and amount had not been recovered from him, therefore the appellant/surety cannot be made liable for the payment of amount of surety bond. It has also been urged that, the accused had undertaken to pay the amount to the Government, therefore, the Court of Sessions was not entitled to recover the amount. As against this, learned counsel for State has supported the impugned order and has urged that, the amount of bond could be realised under section 446 of the Cr.P.C. and that, there is no error in the impugned order.
4. As pointed out earlier, it is not disputed that, the appellant had stood surety for the accused/Ramchandra and had executed his surety bond, which is filed in the record of the Lower Court. That bond clearly indicates that, the appellant/surety had undertaken to keep the accused present in the Court of J.M.F.C. Naraingarh and in such other Courts where the case stands transferred. The contention that, the Court of Sessions was not a transferee Court cannot be accepted. It is clear from the terms of the bond that, the surety/appellant had undertaken to keep the accused present, not only in the Court of J.M.F.C. Naraingarh, but in any other Court where the case may be transferred and where the attendance of the accused would be required for answering the charge, till the date of decision. This term of personal bond clearly indicates that, there was an undertaking by the surety/appellant to produce and keep the accused present in the Court, where the trial and decision of the case was to take place, which presumably would cover the Court of Session which passed the impugned order.
5. No doubt surety bond is in the nature of an agreement and should be strictly construed, but the construction must not be so unduly strained so to defeat its essential p
