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1968 DIGILAW 259 (ALL)

Sri Ram v. State of U. P.

1968-05-24

B.D.GUPTA

body1968
JUDGMENT B.D. Gupta, J. - The learned Temporary Civil and Sessions Judge, Mainpuri whose order is sought to be revised by this petition, appears to have taken a very curious view of the matter. Het Ram, the third applicant in this revision, was an accused in a case under section 395/397 I.P. which had been fixed for hearing before the learn d Judge on and from the 2nd of February, 1967. Long before, by an order of the Sessions Judge, Mainpuri, dated the 28 h of July, 1966, Het Ram had been granted bail subject to his executing: a personal bond for Rs 1500 and furnishing two sureties each in the like amount to the satisfaction of the Additional Di-it Magistrate (Judicial) Mainpuri. Following this order Het Ram excused a personal bond and the xemaining two applicants viz. Sri Ram and Man Singh sood sureties for Het Ram in a sum of Rs. 1500 each. The sureties were accepted by the Additional District Magistrate (Judicial), Mainpuri and Het Ram was, therefore, released on bail. 2. It is not clear as to when and how Het Ram was rearrested before the 2nd of February, 1967 but there is no controversy that Het Ram had been arrested and was in detention in Etah Jail since before the 2nd of February, 1967. The result was that when the Sessions Trial was taken up on the 2nd of February, 1967 Het Ram was not present. The Additional District Government Counsel filed an application before the learned Temporary Civil and Sessions Judge stating that Het Ram had been arrested and was in Etah Jail and praying that Het Ram be summoned through special messenger. The trial had to be adjourned and the learned Temporary Civil and Sessions Judge passed the following order with reference to Het Ram : "The accused is on bail. His bail bonds are cancelled and bonds are forfeited. Issue notice to the sureties to show cause why the amount of forfeited bonds be not realised from them. Allowed adjournment. Summon the accused at once through special messenger fixing 3 2-1967." 3. Notices were accordingly issued in response to which objections were filed. His bail bonds are cancelled and bonds are forfeited. Issue notice to the sureties to show cause why the amount of forfeited bonds be not realised from them. Allowed adjournment. Summon the accused at once through special messenger fixing 3 2-1967." 3. Notices were accordingly issued in response to which objections were filed. The substance of the objection was that since Het Ram was on detention in Etah Jail it was not possible for the sureties to secure his attendance, nor was it possible for Het Ram to present himself, in the court of the Temporary Civil and Sessions Judge m the 2nd February, 1967 he larned Judge did not accept this objection and by order dated the 31st of July, 1967 directed Het Ram, as also each of the sureties, to pay a sum of Rs. 500/- as penalty within seven days. It is against this order that the present revision has been filed. 4. A perusal of the judgment of the Darned Temporary Civil and sessions Judge makes oat that his order appears to have been the result of annoyance caused by the fact of the absence of Het Ram with the result that the trial had to be adjourned, rather than the result of a judicial consideration of the facts and circumstances which made it manifestly impossible either on the part of Hari Ram or on he part of sureties to bring about the presence of Het Ram in the court of the learned Temporary Civil and Sessions Judge on he 2nd of February, 1967. The substance of the reasoning given by the learned Temporary Civil and Session Judge is that since Het Ram had been arrested and was in detention in Etah Jail it was the duty of Het Ram, as also of the sureties, to have informed the court about this position well in advance so as to avoid the necessity of an adjournment of the trial fixed for the 2nd of February, 1967. As regards Het Ram, the learned Judge observed that "he was quite negligent or he intentionally did not inform the court and abused the bail granted to him in the Sessions case." 5. The learned Judge seems to have over-looked the well settled rule that the terms of a bond sought to be enforced must be strictly interpreted. As regards Het Ram, the learned Judge observed that "he was quite negligent or he intentionally did not inform the court and abused the bail granted to him in the Sessions case." 5. The learned Judge seems to have over-looked the well settled rule that the terms of a bond sought to be enforced must be strictly interpreted. The bond executed by the sureties is before me By this bond the sureties declared, as regards Het Ram, that Het Ram shall attend the court on the date fixed for the hearing and that in case of his making default therein the sureties bound themselves to forfeit to the U. P. Government the sum of Rs. 1,500/- each. The bond executed by Het Ram is also before me. It is in terms similar to the bond executed by the sureties. It may therefore, be accepted that the sureties had bound themselves to secure the attendance of Het Ram, and Het Ram had bound himself to be present, in the court of the learned Judge on the 2nd of February, 1967. Subsequent to the execution of the aforesaid bonds, however, Het Ram was arrested and was actually in the custody of the Jail authorities on the 2nd of February, 1967. In such a situation it is obvious that it was neither possible for the sureties to secure the attendance of Het Ram nor possible for Het Ram to compel the authorities in charge of the jail at Etah to take him to the court of the learned Judge at Mainpuri. I cannot conceive of an order of forfeiture of bonds for inability to do something which was manifestly impossible. The order of the learned Judge forfeiting the bonds is founded, in substance, on the omission of the sureties and Het Ram to inform the court well in advance that Het Ram had been arrested and was in detention in Etah Jail. There can be no doubt that if the sureties or Het Ram had informed the court of the learned Judge well in advance about the changed situation their conduct would have been highly commendable. There can be no doubt that if the sureties or Het Ram had informed the court of the learned Judge well in advance about the changed situation their conduct would have been highly commendable. At the same time it cannot be overlooked, as the learned Judge seems to have done, that neither the sureties nor Het Ram had given him any undertaking that if Het Ram was arrested meanwhile, they would inform the court thus avoiding adjournment of the trial fixed for the 2nd of February, 1967, Reference may be made to the decision of a Division Bench of the Patna High Court in the case of Alauddin v. Emperor. If I may say so with respect I am in full agreement with the view taken by the Division Bench in the aforesaid case supported as it is by a reference to material from decisions recorded by courts in England, the United States of America, and courts in India also. It is not necessary to dilate on the matter. Suffice it to say that the view taken by the learned Temporary Civil and Sessions Judge, far from being supported by judicial considerations, borders on perversity. 6. This revision is allowed. The order of the learned Temporary Civil and Sessions Judge dated the 31st of July, 1967 is set aside together with the order of the said Judge dated the 2nd of February, 1967 whereby he directed that the bail bonds of Het Ram be forfeited, and the notice which had been issued to the applicants to show cause is discharged.