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1973 DIGILAW 383 (ALL)

Badri Singh v. State

1973-09-04

CHANDRA PRAKASH, M.N.SHUKLA

body1973
JUDGMENT M.N. Shukla, J. - This case has come to us on a reference made by a learned single Judge in view of the apparent conflict of views between two single Judge decisions of this Court. The entire case has been referred to us for decision. 2. The revision itself was directed against the forfeiture of a bond executed by the Applicant Badri Nath Singh as the surety for producing the accused Pyare Lal in court. The said accused was arrested by the police of Ramnagar in connection with an offence u/s 279/338/46 IPC Later he wad release on bail by the police on his furnishing the bail bond of Rs. 5,000/-. The Applicant Badri Nath Singh (surety) executed the bail bond on the basis of which the accused was enlarged. When Pyare Lal did not appear in Court, the surety was given a notice to produce him by 23-8-1969. Since the accused could not be produced even on the aforesaid date, notice was issued to the surety requiring him to show cause as to why the amount of the bond be not forfeited. The Applicant was afforded further opportunities for producing the accused but he did not succeed in doing so. Eventually the ADM. Varanasi passed an order on 18-12-1969 to the effect that the full amount of bail bond i.e. Rs. 5,000/- be forfeited and notice was issued for realisation of the same. The Applicant preferred an appeal against the said order. The appeal was dismissed and the order of the ADM was affirmed. In these circumstances the Applicant filed a revision in this Court which was referred to a larger Bench and came up before us for hearing. 3. The point which was canvassed on behalf of the Applicant was that the bond in question was taken by the police and not by the court and therefore, Section 514 of the Code of Criminal Procedure did not apply to the facts of the case and the learned Magistrate acted illegally in passing the impugned order for the forfeiture of the bond. We have perused the bail bond which purports to have been executed u/s 169 Code of Criminal Procedure and the undertaking contained therein is to produce the accused in court or before the RTO on the day his appearance was required and in the event of default the surety is bound to pay the amount of Rs. 5,000/-stipulated therein. 4. The learned Counsel for the Applicant mainly relied on the decision of the Supreme Court in Rameshwar Bhartia v. State of Assam AIR 1962 SC 405 and his sheet-anchor was the following passage: The other point taken on behalf of the Appellant is a more substantial one. The security bond was taken from him not by the Court but by the Procurement Inspector. It is true that it contained the undertaking that the seized paddy would be produced before the court, but still it was a promise made to the particular official and not to the court. The High Court was in error in thinking that Section 514 Code of Criminal Procedure applied. Action could be taken only when the bond is taken by the court under the provisions of the Code such as Section 91 for appearance, the several security sections or those relating to bail. 5. On the basis of the above observations it was contended before us that before an undertaking could be enforced by a person or authority, it was essential that such person or authority must be a party to the transaction which was evidenced by such undertaking. In the present case since the bond was admittedly taken by the Police Officer and not by the court, it was argued that the court could not enforce the same and the bond could not be forfeited under the provisions of Section 514 Code of criminal Procedure. The Petitioner submitted that his contention found support from a single Judge decision of this Court in Ram Datt v. State 1968 ACR 214 decided by Rajeshwari Prasad, J. In that case a bond for appearance of the Petitioner was taken by the police u/s 170 Code of Criminal Procedure and it was argued that there could not be a forfeiture of the bond within the meaning of Section 514 Code of criminal Procedure. That contention found favour with the learned Judge and it was held that the provisions of Section 514 were not applicable and the bond could not be forfeited. The decision of the Supreme Court in the case of Rameshwar Bhartia (supra) was followed. 6. The learned Counsel for the State, however, relied on another single Judge decision viz. that of D.D. Seth, J. in Bharosi Lal v. State 1970 AWR 327 . In that case the Food Inspector exercising the powers of a police officer under the PFA Act had released the accused on the execution of a surety bond by the surety under the provisions of Code of Criminal Procedure for the production of the accused before the Magistrate. When the surety failed to produce the accused it was held that the Magistrate rightly ordered the forfeiture of the bond Under Sub-section (1) of Section 514 Code of Criminal Procedure. The case of the Supreme Court was cited before the learned single Judge and he distinguished the same in the following words: In Rameshwar Bhartia's case the only thing that the Supreme Court decided was that when the band was for the production of property, action u/s 514 Code of Criminal Procedure could be taken only when the bond was taken by the Court. In that case the Supreme Court did not lay down that if the bond for the appearance of the accused was taken by a police officer (Food Inspector) u/s 46 of the Code of Criminal Procedure the bond could not be forfeited u/s 514 Code of Criminal Procedure. 7. We have given or earnest consideration to the point raised by the learned Counsel for the Petitioner but in our opinion it is untenable. The facts of the Supreme Court case are dearly distinguishable a that case the bond had been execute; for the production of some property and consequently the court was called upon to consider only the provisions of Section 514 Code of Criminal Procedure in so far as they could be made applicable to the production of property The question of appearance of an accused before the court did not arise for decision at all. We cannot read in that case any decision to the effect that if a bond for the appearance of an accused was taken by a police officer, (he bond would still not be liable forfeiture u/s 514 Code of criminal Procedure. 8. The observation made by the Supreme Court, therefore, in Rameshwar Bhartia's case (supra) must be understood and interpreted in the background of the facts of that case would not be correct to extend those observations to an entirely different set of facts which may be governed by different rules or principles of law. In Rameshwar Bhartia's case the Supreme Court appears to have interpreted only the first para of Sub-section (1) of Section 14. No occasion obviously arose in that case for interpreting the second para of that section. It would, therefore, not be right to rely on the said decision for purposes of interpreting the second para of that section. The learned Counsel for the Petitioner contended that to pronouncement of the Supreme Court in Rameshwar Bhartia's case war law declared Under Article 141 of the Constitution and as such it was binding on ill courts within the territory of India. It is no doubt true that an interpretation of law accepted by the Supreme Court is binding on all the courts Under Article 141 but circumspection has to be exercised in precisely ascertaining as to whether any such rule or law as submitted by the Petitioner was actually laid down by the Supreme Court in its decision. The Supreme Court has time and again cautioned against the unwarranted extension of the ratio of one case to a different set of facts which may attract different provisions of law. In Ranchhoddas Atmaram Vs. The Union of India (UOI), AIR 1961 SC 935 Sarkar, J. observed in para 10 of the reports: Some of the High Courts have thought that this Court had decided in these cases that the maximum penalty permissible under the provision is Rs. 1,000/-. The fact is that the question was never required to be decided in any of these cases and could not, therefore, have been, or be treated as, decided by this Court. In Leo Roy Frey Vs. 1,000/-. The fact is that the question was never required to be decided in any of these cases and could not, therefore, have been, or be treated as, decided by this Court. In Leo Roy Frey Vs. The Superintendent, District Jail, Amritsar and Another, AIR 1958 SC 119 this Court observed that "No question has been raised as to the maximum amount of penalty that can be imposed u/s 167(8) and we are not called upon to express any opinion on that point." This would show that this Court had taken notice of the fact that the High Courts were interpreting the judgment in F.N. Roy Vs. Collector of Customs, Calcutta, AIR 1957 SC 648 and the other cases in a manner which was not in tended and desired to strike a note of warning against the misconception. None of these cases is authority for the proposition that the maximum penalty which can be imposed under item 8 in Section 167 is Rs. 1.000/-. The argument that this Court has already held that the maximum penalty that can be awarded under it is Rs. 1,000/- must therefore fail. 9. Thus, it is manifest that the ratio of a decision must be confined strictly to the factual background in which it was given and surely there is no justification for reading in it some principle or rule relating to a point which did not arise for adjudication in that case. That is why the Supreme Court felt the necessity of striking a note of warning against such misconception as is likely to arise if the background in which a point was actually decided is not taken into consideration. Applying the above principle to the facts of the present case, we are of the opinion that the question of forfeiture of a bond executed for appearance of a person before a court did not at all arise for adjudication in Rameshwar Bhartia's case and the learned Counsel for the Petitioner cannot derive any assistance from it. 10. An analysis of Section 514 of the Code of Criminal Procedure makes it clear that it contemplates two kinds of bonds, the first part relates to any bond taken by the court and the second part relates to a bond for the appearance of an accused before the court. 10. An analysis of Section 514 of the Code of Criminal Procedure makes it clear that it contemplates two kinds of bonds, the first part relates to any bond taken by the court and the second part relates to a bond for the appearance of an accused before the court. The ambit of the first para of Sub-section (1) of Section 514 is wider than that of the second paragraph. The former may embrace within its scope bonds for production of property as well as for appearance of the accused. The preliminary condition however, which must be satisfied before the said provision can be made applicable is that the bond should have been taken by the court. The language of the second para is, however, restricted in its scope. It is not couched in such wide terms as the first para. Under the second para the bond can be only for appearance before a court but it is not hedged in by the condition that it must be taken by the court or executed in favour of the court. Therefore, under the second para even though the cases of production of property can not be covered, it is nonetheless free from the other condition, namely that the bond must be executed before the court. If a different interpretation were placed on this provision, it would lead to very grave and anomalous consequences. Thus, for instance, even u/s 496 of the Code of Criminal Procedure it is open to a police officer to release an accused on bail if he is arrested for commission of a non bailable offence. In such situation the bond would be taken by a police officer for appearance of the accused before a court. If the second para of Section 514 were made inapplicable to such case, the very object of Section 496 Code of Criminal Procedure would be defeated. It would naturally cause incalculable hardship to the accused person. Likewise, there are other provisions in the Code which permit the release of a person on the execution of a bond before the police officer and not in the presence of the court. All such enabling provisions would be rendered nugatory if the interpretation suggested by the learned Counsel for the Petitioner were accepted. 11. Likewise, there are other provisions in the Code which permit the release of a person on the execution of a bond before the police officer and not in the presence of the court. All such enabling provisions would be rendered nugatory if the interpretation suggested by the learned Counsel for the Petitioner were accepted. 11. In the instant case, as we have already observed, the bond purported to have been executed u/s 169 Code of Criminal Procedure for which the following proforma is prescribed in Schedule V to the Code of Criminal Procedure (Form XXV). * * * (Their lordships then reproduced Form XXV of Schedule V and proceeded on to observe :--) 12. When a statutory from is prescribed, some significance attaches to it. The Schedules form a part of the statute and must be read together with it for all purposes of construction. See A.G. v. Lamplough (1878) 3 Ex.D. 214, L.J.O.B. 555 Section 555 of the Code of Criminal Procedure recognises the sanctity ascribed to the forms prescribed in the Schedule. It reads: (Their Lordships then reproduced in extenso Section 555 of Code of Criminal Procedure and proceeded on:) In Queen Empress v. Man Mohan Lal ILR 21 All. 86 a Division Bench of this Court observed: Now this Schedule No. V is as much a portion of the Code of Criminal Procedure as any other portion of it and is most useful in throwing light on the meaning of those sections of the Code in connection with which the forms prescribed by it are to be used. In Dorabshah Bomanji Dubash Vs. Emperor, AIR 1926 Bom 218 the court refused to accept the mere literal interpretation of Section 243 of the Code of Criminal Procedure and clothed it with a wider meaning by relying upon Form No. I prescribed in Schedule V, although Section 243 allowed a conviction if the accused admitted that he had committed the alleged offence, which might favour the interpretation that such conviction could be possible only where the accused was personally present. Section 204 of the Code also provides that a Magistrate taking cognizance of an offence in a case where a summons should issue in the first instance, "shall issue his summons for the attendance of the accused" yet under Form No. 1 in Schedule V the persons summoned is required to appear in person or by pleader before the Magistrate. Relying on the statutory form it was held that it was open to an accused to appoint his estate manager to appear in his stead and plead and do other acts on Aus behalf in the case against him and it was equally open to the Court to permit the estate manager to represent the accused as a pleader. In Narain Sahai v. Emperor 1946 AWR 141 Iqbal Ahmad, C.J. observed: In view of this provision the form must be regarded a foct of the Code and the various sections of that Code should, in my opinion, be So construed as to harmonize and not to come into conflict with the forms. 13. It is clear from the proforma prescribed by Schedule V which we have quoted that Section 169 Code of Criminal Procedure is an enabling provision which can be pressed into service by a police officer for the appearance of an accused person before a court. Obviously the bond in such cases shall be got execute by the police officer and not by the court but that by itself is no ground for holding that such bond cannot be enforced by the court on the fallacious reasoning that the court itself was not a party to such bond. 14. The learned Counsel for the Petitioner has not beep able to place before us any provision in the Code of Criminal Procedure which relates to the production of property other than para 1 of Sub-section (1) of Section 514 Code of Criminal Procedure. In our opinion, as we have already observed, the language of that paragraph is wide enough to cover the case of production of property. Therefore, where the case of producing such property arises, on the very terms if that paragarph it is necessary that the other condition be fulfilled, namely, that the bond should have been executed in favour of the court. Therefore, where the case of producing such property arises, on the very terms if that paragarph it is necessary that the other condition be fulfilled, namely, that the bond should have been executed in favour of the court. When, however, the bond is for the appearance of an accused, no such condition arises and the case would be covered by the second paragraph under which it would be permissible that the bond be taken by a police officer for the appearance before a court. 15. The learned Counsel for the Petitioner laid stress fin other possible illustrations which, Recording to him, were also considered by the Supreme Court in the case of Rameshwar Bhartia (supra) and which in his submission exhausted the scope of Section 514 Code of criminal Procedure. He drew attention to the observation in the passage already quoted in our judgment referring to the provision of the Code. In our opinion those observations do not lend any support to the Petitioner's contention. It is significant that all those illustrations such at Section 91 or the security sections contemplate cases relating to the appearance of the accused alone. They are not illustration dealing with the case of production of property. Therefore, what the Supreme Court laid down was that in case where under the provisions of the Code itself the bond was required to be taken by the court, the court alone could enforce those bonds and they could be forfeited. It was not laid down that where the Code did not require the execution of the bond before a court, there also the bond could not be forfeited unless they were actually executed in favour of the court. We have already shown how the bonds executed Under Sections 169 and 496 Code of Criminal Procedure though not in favour of the court are still fully enforceable by the court and are covered by Sub-section (1) of Section 514 Code of Criminal Procedure. 16. It would also not be out of place to mention that under the Code of Criminal Procedure the custody and disposal of property is dealt with on an entirely different basis from the custody of person. 16. It would also not be out of place to mention that under the Code of Criminal Procedure the custody and disposal of property is dealt with on an entirely different basis from the custody of person. The scheme of the Code suggests that while it is desirable that property should be disposed of only in accordance with the orders of the court and should not be left within the discretion of the police, the appearance of an accused before a court may be enforced either by the court itself or by the police agency in appropriate circumstances. Section 516-A of the Code of Criminal Procedure provides that orders for the custody and disposal of the property pending trial can be made by the court alone. Similarly Section 523 of the Code provides the procedure applicable to property which has been seized by a police officer u/s 51 or alleged or suspected to have been stolen etc. The seizure of such property has to be reported to a Magistrate, who alone can make such order as he deems fit for the disposal of such property. It is thus consistent with the policy of the Legislature reflected in the various provisions of the Code of Criminal Procedure that so far as the production of property is concerned, even u/s 514 Code of Criminal Procedure the undertaking to produce it should be made in favour of a court. 17. We are, therefore, unable to accede to the Petitioner's contention that the bond executed by the petitioned was not enforceable and the order regarding its forfeiture was erroneous or illegal. 18. The construction that we have placed on Section 514 Code of Criminal Procedure is fortified by a Division Bench decision of Calcutta High Court in Sailesh Chandra Chakraborty Vs. The State, AIR 1963 Cal 309 and a decision of the Gujrat High Court in Chhaganlal Kikabhai Vs. State of Gujarat, (1969) CriLJ 1164 . We are unable to agree with the view expressed in In Re: Prabhu Dayal Khubchand and Another, AIR 1960 MP 85 . 19. In the result we dismiss the revision and vacate the stay order but modify the order of the court below to this extent, that a sum of Rs. 1,000/- only shall be recovered as penalty by enforcing the surety bond in this case.