N Criminal Appeal No 128 of 1975
780 Appeal by Special Leave from the Judgment and order dated the 22nd November 1974 of the Allahabad High Court in Criminal Revision No 2475 of 1971
K C Agarwala and M M L Srivastava for the appellant
O P Rana for the respondent
The Judgment of the Court was delivered by B FAZAL ALI J
This appeal by special leave involves a short point of law relating to the legal enforceability of a personal bond executed by the appellant before the police for the production of the car belonging to him which was alleged to have been stolen
The facts leading to the appeal fall within a very narrow compass
The appellant appears to have bought a car No USD 5317 from the dealers ON the basis of a hire purchase agreement
He filed a report before the police alleging that Ran Singh and others had practised a fraud on him and had taken away his car and had not returned the same
On 3 12 1969 the police during the course of investigation recovered the car and handed it over to the appellant on supardnama on his executing a personal bond whereby the appellant undertook to produce the car in the court whenever necessary and in the case of failure to do so he bound himself to pay a penalty of Rs 5000 
By the time the matter came to the Court two years had elapsed and on 14 9 1971 the munsiff magistrate Meerut called upon the appellant to produce the car and as he was unable to do so a notice was issued under section 514 of the Code of Criminal Procedure for forfeiture of the bond
After hearing the appellant the magistrate ordered the forfeiture of the bond and directed the appellant to pay penalty of Rs 5000 
The appellant went up in appeal to the learned Session Judge against the magistrate s order
But the appeal was dismissed
The appellant met the same fate in revision which was preferred to the High Court
Hence this appeal before us
The short point taken by learned counsel for the appellant is that even accepting the prosecution case as it stands the bond is not legally enforceable under the Criminal Procedure code because it was not executed before a court but it was executed before a police officer
It is not disputed by counsel for the parties that as the occurrence took place long before the Criminal Procedure Code 1973 the present case will be covered by the old Criminal Procedure Code 1898
The Criminal Procedure Code contains separate provisions for the custody of property 1 during the course of investigation 2 during the course of enquiry and trial and 3 after the accused is convicted or acquitted
In the instant case we are concerned however with the case while it was under investigation
Section 523 of the Code runs thus The seizure by
any police officer of property taken under section 51 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence shall be forthwith reported to a Magistrate who shall make such order as he thinks fit res 781 pecting the disposal of such property or the delivery of such property to the person entitled to the possession there of or if such person cannot be ascertained respecting the custody and production of such property  It would thus appear from a perusal of this provision that the moment a police officer seizes a property suspected to have been stolen or which is the subject matter of an offence he has to report the matter to the magistrate concerned and it is for the magistrate to pass such orders as he thinks fit regarding the disposal of the property
The learned counsel or the respondent Mr O P Rana has however drawn our attention to Regulation 165 of the Government of Uttar Pradesh Police Regulations in order to contend that this provision concerned clear authority on the police officer to take possession of the property seized and to give it on superdnama to any respectable person
165ii runs thus ii Bulky property other than livestock taken possession of under section 25 of the Police Act V of 1861 attached distrained or seized under section 88 387 or 523 of the Code of Criminal Procedure shall ordinarily pending the orders of the Magistrate be left at the place where it was found in the charge of some land holder or other respect able person willing to undertake responsibility for its custody and to produce it when required by the court
 It is true that this provision read with section 423 undoubtedly authorizes the police to seize the property and to make a summary order of the custody of the property but neither section 523 nor rule 165ii authorize the police officer to take a bond from the person to whom the property is entrusted
The policy of the law appears to be that the execution of the bond involves a civil liability and therefore it is ill the fitness of things that it should be executed before a court
Section 514 of the Code runs thus 5141 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 a Presidency Magistrate or Magistrate of the first class
A perusal of this section clearly shows that a bond for the production of the property seized by the police must be executed before the Court although a bond for the appearance of any person before the Court can be taken by the police under section 1702 of the Code of Criminal  Procedure
This section also clearly enjoins that a bond can be forfeited only if it is executed before a Court or before a Presidency Magistrate or a Magistrate of the first class
Section 6 of the Code of Criminal Procedure classifies the classes of courts which includes magistrate of the first class also
In the present case therefore once the car was seized by the police it was the duty of the police under section 523 to report the matter to the magistrate and get an order from him regarding the custody of the car
This does not appear to have been done
Even the bond which was executed by the appellant was not before the 782 court or the magistrate but before the police officer and in these circumstances therefore the aforesaid bond was not one as contemplated by section 514 and therefore could not be forfeited
This Court in 
Rameshwar Bhartia vs The State of Assam1 went into this very question and observed 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 Criminal Procedure Code applied
Action could be taken only when the bond is taken by the court under the provisions of the Code   The facts of the present case squarely fall within the ratio laid down in that case
It follows therefore that unless a personal bond is executed by a person for the production of the property before a court it shall not be valid in law
In view of these circumstances therefore we are satisfied that the bond executed by the appellant was not legally enforceable and the older of the courts belong forfeiting the bond must therefore be quashed
Before closing this judgment we would like to observe that even r in the new Criminal Procedure Code there is no express provision which empowers the police to get a bond from the person to whom the property seized is entrusted
This may lead to practical difficulties for instance in cases where a bulky
property like an elephant or a car is seized and the magistrate is living at a great distance it would  be difficult for a police officer to report to the magistrate with the property
In these circumstances we feel that the Government will be well advised to make suitable amendments in the Code of Criminal Procedure to fill up this serious lacuna by giving pow
r to the police for taking the bond in such circumstances
We would also like to make it clear that since the bond is legally invalid
it is not enforceable under section 514 Criminal Procedure Code but we refrain from making any observation regarding any other liability of the appellant under the law
For the reasons given above we allow this appeal set aside the orders of the courts below and discharge the appellant from the bond VMK Appeal allowed


Summary:
The appellant bought a car from the dealers on the basis of a hire purchase agreement
He filed a report before the police alleging that Ran Singh and others had practised a fraud on him and had taken away his car and had not returned the same
On 3 12 1969 the police during the course of investigation recovered the car and landed it over to the appellant on supurdnama on his executing a personal bond whereby the appellant undertook to produce the car in the court whenever necessary and in the case of failure to do so he bound himself to pay a penalty of Rs 5000 
By the time the matter came to the Court two years had elapsed and on 14 9 1971 the munsiff magistrate Meerut called upon the appellant to produced the car and as he was unable to do so
a notice was issued under section 514 of the Code of Criminal Procedure for forfeiture of the bond
After hearing the appellant the magistrate ordered the forfeiture of the bond and directed the appellant to pay a penalty of Rs 5000 
He failed in his appeal and his revision petition to the High Court was also dismissed
Allowing the appeal by special leave  HELD 1 A perusal of section 514 1 of the Code of Criminal Procedure
1898 clearly shows that a bond for production of the property seized by the police must be executed before the Court although a bond for the appearance of any person before the Court can be taken by the police under section 1702 of the Code of Criminal Procedure
This section also clearly enjoins that a bond can be forfeited only if it is executed before a Court or before a Presidency Magistrate or a Magistrate of the first class
In the present case therefore
Once the car was seized by the police it was the duty of the police under section 523 to report the matter to the magistrate and get an order from him regarding the custody of the car
This was not done
Even the bond which was executed by the appellant was not before the Court or the magistrate but before the police officer and in these circumstances therefore the aforesaid bond was not one as contemplated by section 514 and therefore
could not be forfeited
Rameshwar Bhartia v The State of Assam AIR 1952 SC 405 relied on
781 FH 782 Al ii Though the provisions of Regulation 165ii of the Government of Uttar Pradesh Police Regulations read with section 423 of the Code undoubtedly authorizes the police to seize the property and to make a summary order
Of the custody of  the property neither section 523 nor rule 165 ii authorize the police officer to take a bond from the person to whom the property is entrusted
781 D E Observation Even in the new Criminal Procedure Code there is no express provision which empowers the police to get a bond from the person to whom the property seized is entrusted
This may lead to practical difficulties for instance in cases where a bulky property is seized and the magistrate is living at a great distance it would be difficult for a police officer to report to the magistrate with the property
The Government will be well advised to make suitable amendments in the code to fill up this serious lacuna by giving power to the police for taking the bond in such circumstances
1782 E Fl