Dr. Bhanushankar Laxmishankhar Joshi vs State

Baxi, J.—The applicant was granted bail in a sum of Rs. 2000/- by the First Class Magistrate, Jamnagar in proceedings against him under Ss. 384, 506, 114, 451 and 34. He jumped bail and his bond was ordered to be forfeited by the Magistrate by his order dated 29-10-52. Two other persons were'' made co-accused with the applicant in these proceedings and the case against them was ordered to be proceeded with. On 3-12-52 i.e. on the next date of the hearing the applicant appeared in Court and was duly arrested. He then applied for bail & the learned Magistrate ordered him to be released on his executing a personal bond in the sum of Rs. 7000/- undertaking to attend the Court every day with one surety for like amount until the disposal of the case.

Bonds were accordingly executed by the applicant and his surety. By the terms of his bond the applicant undertook to attend the Court every day "whether the case against him was. fixed for: hearing or not" so long as the proceedings against him continued. The surety on his part gave a similar undertaking ensuring the applicant''s attendance. The undertaking to attend the Court whether the case was fixed for hearing or not was inserted in the bonds under the directions of the learned Magistrate. The applicant applied in revision to the Sessions Judge, Halar, against the learned Magistrate''s order and the learned Sessions Judge has made this reference recommending that the undertaking in the applicant''s bonds undertaking to attend the Court whether the case was to be heard on that day or not exceeded the terms of the learned Magistrate''s order and the clause should be deleted from the bail bond and the surety bond.

A case involving the construction of a bond executed by a surety was decided in the case of - State v. Malek Hebatkhanji Meghrajji AIR 1951 Sau 66(A). The accused in that case had undertaken by the bond to appear before the Court until the decision of the case as directed by the Court and the sureties on their part undertook that the accused would attend the Court as directed and that in default they will forfeit the sum specified in the bonds to the Saurashtra Government. The accused jumped bail and intimation of the next date of the hearing could not be given to him though his sureties were notified about it. As the accused did not appear on the date fixed for hearing the trying Magistrate forfeited the bonds executed by the accused and the sureties. On a revision from the learned Magistrate''s order by the sureties the Sessions Judge, Jhalawad set aside the learned Magistrate''s order.

On a revision against the Sessions Judge''s order this Court upheld his order holding that the liability of the sureties had to be judged by the terms of the bond and the undertaking given by them. As the sureties had undertaken that the accused would attend as directed by the Court and the bond did not require them to produce him on the date of the next hearing of the case, intimation given to them to keep the accused present on such date did not dispense with the necessity of giving intimation to the accused himself, primarily it was the accused who was to remain present before the Court when required and it was only when he made default in appearance after due intimation that the liability of the sureties was to arise. It was pointed out in the course of the arguments by the learned Advocate-General that the above construction of the surety bonds would defeat their very purpose if the accused absconded and it became impossible to notify the date to him. It was however held that the liability under the bonds had to be judged by the terms of the bond and as to the contingency referred to by the learned Advocate-General, it was observed at pp. 66-67:

If such a complication was to be avoided the bail bond should have required the accused to appear on every day from the date of the execution of the bond until the final decision of the case, and that would have dispensed with the necessity of giving him intimation of the dates of hearing, and the accused might then have remained absent at his peril.

The order of the learned Magistrate ordering the present applicant to execute a bond undertaking to attend the Court every day until the disposal of the case against him is in accordance with this decision. But the additional undertaking taken from him and the surety viz. that the applicant shall attend the Court whether the case was fixed or not is neither justified by the terms of the learned Magistrate''s order nor by the above-mentioned decision.

Mr. T.U. Mehta for the applicant argued that the offences for which the applicant is prosecuted being bailable offences the learned Magistrate should have granted bail to him unconditionally and his direction that the accused should undertake to appear from day to day is not warranted by law. It is not necessary to express an opinion on this point in the abstract for the applicant having absconded once was not entitled to any further indulgence and if any indulgence was extended to him the learned Magistrate could put him to such terms as he thought fit.

In the result, therefore, the reference is accepted and the applicant is herby ordered to execute a bond in the trying Magistrate''s Court with one surety in terms of the Magistrate''s order and on execution of fresh bonds in that Court the bonds which he and his sureties have given shall be discharged.