CHHAGANLAL KIKABHAI v. STATE — 1967 DIGILAW 136 (GUJ)

A. D. DESAI, J. ( 1 ) THIS is a Criminal Revision Application filed by one Chhaganlal Kikabhai who stood surety for one Magan Bhikha who was arrested by the police head constable Billimora Police Station on March 18 1962 for having committed an offence under sec. 85 (1) (2) of the Bombay Prohibition Act. On March 19 1962 the Police Head Constable took a surety bond from the petitioner which is in the following terms:-I, Chhaganlal Kikabhai resident of village Bhatha Taluka Gandevi is required to give a surety bond. I therefore bind myself that Magan Bhikha shall attend wherever called upon and on such dates of the month and year as may be directed by the Billimora Police Station Officer and shall continue to so attend until otherwise directed by the said police officer. In case of making a default in that respect I bind my self to pay a penalty of Rs. 200/rupees two hundred only to the Bharat Government. The bond was signed by the petitioner in the presence of the Police Head constable in charge of the Billimora Police Station. As Magan Bhikha was found absconding a notice was issued by the Judicial Magistrate First Class Gandevi to the petitioner to produce him in the Court. The Police Head Constable Billimora submitted a report that the petitioner stated to him that he did not stand surety for the accused and he did not know him. The learned Magistrate thereafter examined the Police Head Constable on August 23 1966 who deposed that on March 19 1962 he was the officer in charge of the Police Station and the present petitioner had executed the surety bond. In view of this evidence of the Police Head Constable the learned Magistrate issued a notice against the surety as to why the amount of Rs. 200/should not be recovered from him. In response to this notice the surety appeared and filed an application that Magan Bhikha was serving in the Gaekwad Mills Billimora and requested for time to give reply to the notice. On September 14 1966 the petitioner filed another application stating that he did not stand surety for Magan Bhikha and the notice issued against him should be discharged. The learned Magistrate thereafter heard the petitioner and ordered to issue an attachment warrant to recover the amount of Rs. 200/from him. On September 14 1966 the petitioner filed another application stating that he did not stand surety for Magan Bhikha and the notice issued against him should be discharged. The learned Magistrate thereafter heard the petitioner and ordered to issue an attachment warrant to recover the amount of Rs. 200/from him. Being aggrieved by the said order the petitioner filed a Criminal Appeal No. 48 of 1967 in the Court of Sessions Judge Bulsar. The said appeal was allowed by the learned Sessions Judge and the order passed by the learned Magistrate was set aside and the case was remanded to the trial Court for disposal according to law. The reason for setting aside the order was that the evidence of the Police Station Officer was not recorded in the presence of the surety. On remand the learned trial Magistrate examined the Police Station Officer in the presence of the petitioner. The petitioner was also given an opportunity to cross examine him. The learned Magistrate thereafter considered the evidence on the record and issued attachment warrant to the Police Sub-Inspector Billimora to recover the sum of Rs. 200/from the surety within 7 days. Being aggrieved by the order the petitioner preferred a Criminal Appeal No. 3 of 1967 in the Court of Sessions Judge Bulsar at Navsari. The said appeal was heard by the learned Sessions Judge who was pleased to dismiss the same. It is against this order that this revision application is filed by the petitioner. ( 2 ) ). Mr. Shethna appearing for the petitioner contended that the order for recovery of Rs. 200/from the petitioner was passed under sec. 514 of the Criminal Procedure Code but the said section was inapplicable to the facts of the present case. The argument of Mr. Shethna was that the bond was taken by the Police Officer and not by the Court and therefore the Provisions of sec. 514 of the Criminal Procedure Code were not applicable and that the said order passed by the learned Magistrate was without jurisdiction. ( 3 ) NOW sub-sec. (1) of sec. 514 of the Criminal Procedure Code reads as under:-WHENEVER it is proved to the satisfaction of the Court by which a bond under this Code has been taken or of the Court of Presidency Magistrate or Magistrate of the first class. ( 3 ) NOW sub-sec. (1) of sec. 514 of the Criminal Procedure Code reads as under:-WHENEVER it is proved to the satisfaction of the Court by which a bond under this Code has been taken or of the Court of Presidency Magistrate or Magistrate of the first class. or when the bond is for appearance before a Court to the satisfaction of such Court. That such bond has been forfeited the Court shall record the grounds of such proof. and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. This section lays down the procedure for the forfeiture of bonds. It deals with that two classes of bonds; first class is when a bond under this Code has been taken by any Court and then it is that Court alone or the Court of the Presidency Magistrate or a Magistrate of the first class that can initiate the proceeding under the section; and the second class is when a bond in for appearance in a particular Court and then it is only that Court which can start a proceeding for forfeiture. The bonds of the second class will include these taken by the police officer for appearance before a Court. In the present case the bond was for appearance of the accused Magan Bhikha and was taken by the Police Station Officer. The petitioner stood surety and gave an undertaking that Magan Bhikha would attend whenever and wherever called upon by the Police Station Officer. Therefore the present case is governed by the provisions of the latter part of sec. 514 because the surety was directed to produce Magan Bhikha before the Court by the Police Station Officer and he failed to do so. It is evident therefore that the learned trial Magistrate had the jurisdiction to pass the impugned order under sec. 514 of the Criminal Procedure Code. The contention of Mr. Shethna that the provisions of sec. 514 of Criminal Procedure Code are inapplicable to the facts of this case and that the impugned order is without jurisdiction is rejected. 4 Mr. It is evident therefore that the learned trial Magistrate had the jurisdiction to pass the impugned order under sec. 514 of the Criminal Procedure Code. The contention of Mr. Shethna that the provisions of sec. 514 of Criminal Procedure Code are inapplicable to the facts of this case and that the impugned order is without jurisdiction is rejected. 4 Mr. Shethna further relied on the judgment of the Supreme Court in Rameshwar Bhatia v. The State of Assam A. I. R. 1952 S. C. 405 and particularly relied on the following observations in the said judgment:-THE High Court was in error in thinking that sec. 514 Criminal P. C. applied. Action could be taken nly when the bond is taken by the Court under the provisions of the Code such as sec. 91 for appearance the several security sections or those relating to bail. . . . . . . . The language is perfectly clear; the power to forfeit and the imposition of the penalty provided for in the later parts of the section arise only if the preliminary conditions are satisfied. In order to understand the said observations it is necessary to consider the facts of that case. The facts were that one Rameshwar Bhatia a shop-keeper was in possession of feed-grains in excess of the quantity permitted by the Assam Food Grains Control Order 1947 The shop was raided and the Procurement Inspector allowed the stock of paddy with Rameshwar Bhatia under a security bond by which an under taking was taken from Rameshwar that the seized paddy would be produced before the Court. The bond was executed in favour of the Procurement Inspector. Rameshwar was subsequently unable to produce the paddy before the Court as the whole of it was taken away by a Congress M. L. A. for affording relief to those who suffered in the earthquake. Rameshwar was ordered to procure a similar quantity of paddy after taking an appropriate licence and to make over the same to the procurement department. Against this order a reference was made to the High Court under sec. 438 of the Criminal Procedure Code for enhancement of sentence by the District Magistrate. The reference was accepted by the High Court and the sentence was enhanced. As regards the security bond the case was remanded to the trial Court for taking action according to sec. Against this order a reference was made to the High Court under sec. 438 of the Criminal Procedure Code for enhancement of sentence by the District Magistrate. The reference was accepted by the High Court and the sentence was enhanced. As regards the security bond the case was remanded to the trial Court for taking action according to sec. 514 of the Criminal Procedure Code for its forfeiture. Against the order of conviction and the order of remand an appeal was filed in the Supreme Court. Their Lordships held that the provisions of sec 514 of Criminal Procedure Code were inapplicable because the bond was given to the Procurement Officer. It is in light of these facts that Their Lordships held that the action could be taken under the provisions of sec. 514 of Criminal Procedure Code only when the bond is taken by the Court The only thing that was decided by the Court was that when the bond was for production of the property and executed in favour of the procurement Officer the provisions of sec. 514 of the Criminal Procedure Code could not apply. The Supreme Court did not purport to lay down that when a bail bond is for the appearance of the accused and is taken by a police officer under the provisions of the Criminal Procedure Code. the bond cannot be forfeited under sec. 514 of the Criminal Procedure Code. It is clear therefore the aforesaid observation in Rameshwar Bhatias case (supra) can be of no help to Mr. Shethna. As already stated in the present case the bond was for appearance of the accused and was governed by the latter part of sec. 514 of the Criminal Procedure Code and the learned trial Magistrate bad jurisdiction to pass the order under said section. ( 4 ) THE second contention of Mr. Shethna was that the bond was vague as it did not mention the place where Magan Bhikha had to attend whenever called upon by the Billimora Police Station Officer. The argument was that the provisions of sec. 499 Criminal Procedure Code required that it should be specifically stated in the surety bond that the accused should remain present at a particular place. In other words the place where the accused is required to be present should be specified in the bond. The argument was that the provisions of sec. 499 Criminal Procedure Code required that it should be specifically stated in the surety bond that the accused should remain present at a particular place. In other words the place where the accused is required to be present should be specified in the bond. In the present case it is mentioned in the surety bond that Magan Bhikha had to remain present wherever Billimora Police Station Officer directed him to do so and therefore no specific place was mentioned in the bond as to where Magan Bhikha was required to attend. The provisions of sec. 499 sub-sec. (1) reads as under:-BEFORE any person is released on bail or released on his own bond a bond for such sum of money as the police officer or Court as the case may be thinks sufficient shall be executed by such person and when he is released on bail by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the police officer or Court as the case may be. The provisions requiring the mentioning of the place where the accused has to remain present is an essential requirement of the section. It is again well established that a surety bond which is penal in its nature should be strictly construed. The Shorter Oxford English Dictionary defines the word mention as meaning to specify by name or otherwise in words. Therefore when it is stated in the surety bond that person has to remain present at the wishes of the police it cannot be said to be a bond in accordance with the provisions of the sec. 499 of the Criminal Procedure Code. The provisions of sec. 499 so far as the mentioning of the place where the accused is required to remain present are mandatory. ( 5 ) MR. Shethna relied on the decision in the case of Bhalu v. The State of Punjab A. I. R. (1952) Punjab 228 where it has been held that where a surety bond is for attendance of a person at the wishes of the police the bond is defective and the order for forfeiture and for payment of penalty is illegal. Shethna relied on the decision in the case of Bhalu v. The State of Punjab A. I. R. (1952) Punjab 228 where it has been held that where a surety bond is for attendance of a person at the wishes of the police the bond is defective and the order for forfeiture and for payment of penalty is illegal. The bond in the present case when it directs that Magan Bhikha has to remain present wherever called upon by the Police Station Officer is vague and defective in that respect. I therefore set aside the order passed by the learned Magistrate forfeiting the bond and ordering the recovery of Rs. 200. 00by attachment of the property of the petitioner. ( 6 ) THE result is that the revision application is allowed. Orders accordingly. Application allowed .