N Criminal Appeal No 154 of 1972
From the Judgment and Order dated 12 11 1971 of the Allahabad High Court in Criminal Revision No 865 of 1970
Shiv Pujan Singh for the Appellant
DP Uniyal and M V Goswai for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
Jorma who was convicted by the learned Sessions Judge Dehradun under Section 302 Indian Penal Code and 449 sentenced to suffer imprisonment for life was directed by the High Court of Allahabad to be released on bail on furnishing bail to the satisfaction of the District Magistrate Dehradun
The District Magistrate Judicial Dehradun ordered Jorma to execute a personal bond in a sum of Rs 5000 and to furnish two sureties in a sum of Rs 10000 each
Ram Lal the present appellant was one of the persons who executed a surety bond
Another Abdul Jabbar also executed a surety bond
By some oversight no personal bond was taken from Jorma nor was his signature taken on the reverse of the bonds executed by the two sureties as appeared to have been usually done
Jorma jumped bail and the sureties were unable to produce him when required to do so
The District Magistrate Dehradun therefore forfeited the surety bonds and issued a warrant of attachment against the sureties under Section 514 of the Code of Criminal Procedure 1898
The appellant preferred an appeal to the High Court of Allahabad against the order of forfeiture
Before the High Court it was submitted that the surety bond executed by the appellant could not be forfeite when no personal bond had been taken from the accused who had been released on bail
The High Court over ruled the submission of the appellant and confirmed the order of forfeiture
The appellant has filed this appeal on a certificate granted by the High Court under Article 1341c of the Constitution
Shri Shiv Pujan Singh learned Counsel for the appellant submitted that the question of forfeiting the surety bond for the failure of the accused to appear would arise only if the accused himself had executed a personal bond for his appearance
He submitted that someone must be primarily bound before the surety could be bound and his bond forfeited
He invited our attention to Section 499 of the Code of Criminal Procedure 1898 and form No 42 of the forms in Schedule V
He relied on the decisions in Brahma Nand Misra vs Emperor 1 and Sailash Chandra Chakraborty vs The State2
A reference was also to Bakaru Singh vs State of UP 3 On the other hand the learned Counsel for the State urged that the bond to be executed by the surety was independent of the bond to be executed by the accused and there was no impediment in the way of the forfeiture of the surety bond even in the absence of a personal bond executed by the accused
He relied upon the decisions in Abdul Aziz  Anr
vs Emperor4 and Mewa Ram  Anr
vs State 5
450 Section 4991 of the Code of Criminal Procedure Code 1898 was in the following terms 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 persons 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
Now this provision contemplated the execution of a bond by the accused and by the sureties
The provision did not imply that a single bond was to be executed by the accused and the sureties as it were to be signed by the accused and counter signed by the sureties
Form No 42 of Schedule V Code of Criminal Procedure 1898 was as follows XLII bond and bail bond on a preliminary Inquiry before a Magistrate
See Sections 496 and 499 I name of place being brought before the Magistrate of as the case may be charged with the offence of and required to give security for my attendance in his Court and at the Court of Session if required do bind myself to attend at the Court of the said Magistrate on every day of the preliminary inquiry into the said charge and should the case be sent for trial by the Court of Session to be and appear before the said Court when called upon to answer the charge against me and in case of my making default herein I bind myself to forfeit to Government the sum of rupees Dated this day of 19 Signature I hereby declare myself or we jointly and severally declare ourselves and each of us surety or sureties for the said name that he shall attend at the Court of on every day of the preliminary inquiry into the offence charged against him and should the case be sent for trial by the Court of Session that he shall be and appear before the said Court to answer the charge against him and in case of his 451 making default therein I bind myself or we bind ourselves to forfeit to Government the sum of rupees Dated this day of 19 Signature The undertaking to be given by the accused as may be seen from form No 42 of Schedule V was to attend the Court on every day of hearing and to appear before the Court whenever called upon
The undertaking to be given by the surety was to secure the attendance of the accused on every day of hearing and his appearance before the Court whenever called upon
The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused
The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon even if both the undertakings happened to be executed in the same document for the sake of convenience
Each undertaking being distinct could be separately enforced
It is true that before a person is released on bail he must execute a personal bond and where necessary sureties must also execute bonds
There can be no question of an accused being released on bail without his executing a personal bond
But it does not follow therefrom that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court
The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused
Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused
The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties
The Calcutta High Court in Sailash Chandra Chakraborty vs The State supra and single Judge of the Allahabad High Court in Brahma Nand Misra vs Emperor supra proceeded on the assumption that the bond executed by the accused and the sureties was single and indivisible and if the accused did not join in the execution of the bond the bonds executed by the sureties alone were invalid
We do not find any warrant for this assumption in Section 499 of the Criminal Procedure Code of 1898
We are afraid that there has been some confusion of thought by the importation of the ideas of debt  and surety  from the civil law
As pointed out in Abdul Aziz  Anr
vs Emperorsupra under Section 499 Criminal Procedure Code the surety did not guarantee the payment of any sum of money by the person accused 452 who was released on bail but guaranteed the attendance of that person and so the fact that the person released on bail himself did not sign the bond for his attendance did not make the bond executed by the surety an invalid one
In Mewa Ram  Anr
vs State supra the difference between a surety under the Code of Criminal Procedure and a surety under the Civil Law was pointed out and the view taken in Abdul Aziz  Anr
vs Emperor supra was reiterated
We agree with the view expressed in Abdul Aziz  Anr
vs Emperor and Mewa Ram  Anr
vs State supra
In Bakaru Singh vs State of UP supra the question presently under consideration did not arise
The question which was considered in that case was whether it was necessary that the personal bond of the accused should be executed on the other side of the bond executed by the surety on the same paper
It was held that it was not necessary
And it was pointed out that the mere fact that form No 42 Schedule V Criminal Procedure Code printed the contents of the two bonds one to be executed by the accused and the other by the surety together did not mean that both the bonds should be on the same sheet of paper
To the extent that it goes the decision helps the State and not the appellant
For the reasons stated above the appeal is dismissed
NVK Appeal dismissed


Summary:
Dismissing the appeal  HELD Section 4991 of the Cr
PC which contemplated the execution of a bond by the accused and by the sureties did not imply that a single bond was to be executed by both the accused and the sureties signed by the accused and counter signed by the sureties
An undertaking of the surety in Form 42 Schedule V to secure the attendance of the accused was quite independent of the undertaking given by the accused to appear before the court whenever called upon even if both the undertakings of the surety and the accused happened to be executed in the same document for the sake of convenience
Each under taking being distinct can be separately enforced
450 C 451 B D The fact that an accused would not be released on bail without his executing a personal bond does not mean that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing the attendance of the accused and his appearance before the court
The sureties  responsibility arises from the exeeution of the surety bond and is not contingent upon execution of a personal bond by the accused
Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused
The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties
451 E F Abdul Aziz  Anr
vs Emperor AIR 1946 All 116 Mewa Ram  Anr
vs State AIR 1953 All 481 approved
Bakaru Singh vs State of UP   distinguished
Brahma Nand Misra vs Emperor AIR 1939 All 682 Sailesh Chandra Chakraborty vs The State AIR 1963 Cal
309 over ruled