A.M. Bhattacharjee, J.
1. The petitioner, whose surety-bond executed for the appearance of an accused before Court has been forfeited and who has accordingly been called upon to pay the; penalty thereof, has come up in revision against the orders of forfeiture and imposition of penalty. The bond was taken by a Judicial Magistrate and was for appearance? in that Court, but has been forfeited by the Additional Sessions Judge, to whose Court the case of the accused was subsequently transferred for trial by an order of the Sessions Judge. The main ground urged by Mr. N. K. P. Saraf, learned Counsel for the petitioner, in support of the petition and against the impugned orders is that the bond, having been furnished in the Court of Judicial Magistrate and being for appearance in that Court, could not be forfeited by the Additional Sessions Judge, even though the case might have been assigned to him for disposal by an order of transfer.
2. The question as to whether a bond for the appearance of an accused before a Court can be forfeited by such Court only where the accused was required to appear, or whether it can also be forfeited by the Court which has taken the bond, though for appearance in another Court, or whether it can also be forfeited by the Court to which the case may subsequently be transferred by commitment or otherwise, is far from settled and certain, as will appear from the vast mass of case-law clustering around Section 514 of the Code of Criminal Procedure. This led the Law Commission to recommend restructuring of the provisions in its 41st Report on the Code wherein it has been observed as hereunder (at page 330, paragraph 42.2) :
A doubt has sometimes arisen whether, in the case of a bond for appearance in a particular Court, that Court alone can forfeit it, or whether any Magistrate of the First Class has the power. As a matter of policy, we think that his nower should, in the case_ for bond for appearance before a Court, be confined to that Court as that Court is in the best position to judge? the gravity of the breach of conditions causing forfeiture. Occasionally, some doubt has. also arisen whether a bond for appearance before a Court can be forfeited by the order of a Court to which the case was later transferred. It is only proper that the transferee Court should have the power to deal with such a bond as the first Court had when the case ' was in that Court, We propose to clarify both these points by a suitable amendment.
(Underlining for emphasis).
3. These recommendations have resulted in recasting of the relevant provisions in Section 44 of the new Code of Criminal Procedure, 1973, providing expressly that a bond for appearance before a particular Court can be forfeited only by that Court or by the Court to which the case has .been subsequently transferred. The new Cod-i of 1973, however, has not yet been extend ed to Sikkim where we are still governed by the earlier Code of Criminal Procedure, 1898. Let me, therefore, con-sider whether under Section 514 of the Code of 1898, the Court of the Additional Sessions Judge, being a transferee Court, could forefeit the bond of the petitioner,
4. The relevant provisions of Section 514 being Sub-section (1) thereof, are as hereunder:
Whenever it is proved to the satisfaction of the Court by which a bond. is taken under this Code or of the Court of Presidency Magistrate, or Magistrate of the First Class.
or when the bond is for appearance before a Court, to the satisfaction of Court.
that such bond has been forfeited,
the Court shall record the grounds of such proof, and may call upon any iperson bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
(underlining for emphasis),
5. There is no doubt a very long catena of decisions, which can be found to be quoted in any standard treatise on Code of Criminal Procedure, laying down that in view of the juxtaposition. of the -expression 'when the bond is for appearance before a Court' and the expression 'to the satisfaction of such Court', in the second sub-paragraph and the expression 'the Court shall' in the 'fourth sub-paragraph, when the bond is for appearance before a Court, only that Court, where appearance was to be made according to the bond, can forfeit such bond. Reference may be made to the decision of the Bombay High Court in 'Ballabhadas Motiram v. Emperor AIR 1943 Bom 178 : 44 Cri LJ 546, which has also been referred to by the Law Commission in its Report, as representing this view. There is also a catena of cases, though not that long, laying down a contrary view and reference may be made to the decision of the Allahabad High Court in Harwari La] v, State : AIR1959All751 . also noted in the Report of the Law Commission, as representing this view according to which, a bond for appearance before a Court, being also a ''bond under this Code' within the of the provisions of the first can be forfeited there- under by the three Courts mentioned therein and, in view of the express provisions of the second sub-paragraph can also he forfeited by the Court before which appearance is required by the terms of the bond. On a consideration of the provisions of Section 514 (1), as quoted hereinabove, I have, and this. I say with respect, not been able to persuade myself to agree with the former view and have, with equal respect, agree with the contrary view and I would now proceed to state my reasons.
6. There can be no doubt that a bond for appearance of the accused before a Court, whether executed by the accused or by the surety, as envisaged in the second sub-paragraph of Section 514 (1), is also a 'bond taken under this Code' within the meaning of the first sub+ paragraph. And if such a bond for appearance is also a 'bond taken under this Code', within the meaning of the first sub-paragraph, then I cannot find any reason why the same cannot be dealt with under that first sub-paragraph and not thus be forfeited by the Courts mentioned therein, namely, the Court by which the bond is taken, the Court of the Presidency Magistrate and the Court of the Magistrate of the First Class. But a bond for the appearance of an accused before a particular Court may not very often be a bond which has been taken by that particular Court, as is contemplated under Sub-section (2) of Section 499, whereunder, 'if the case so require, the bond shall also bind the person released on bail to appear, when called union at the High Court, Court of Session, or Court to answer the charge.' It is in such cases that the second sub-paragranh operates and authorises such latter Court also, though it has not taken the bond, or is not the Court of a Presidency Magistrate or a Magistrate of the First Class, to forfeit the bond and to proceed accordingly.
7. As already noted. Section 446 (1) of the new Code of 1973 expressly confines the authority to forfeit a bond of appearance to the Court before which such appearance is to be made under the-terms of 1 h bond or the Court to which the case has been subsequently transferred. But from this alone, it would, in my view, be too broad a proposition to contend that a change in the law has been deliberately made and that the authority to forfeit a bond for appearanca before a particular Court, which is now expressly confined to that Court only, was not so confined to that Court only in Section 514 of the earlier Code, or that under that Section, a transferee Court could not forfeit a, bond for appearance, as' it can do now under the new1 Code, As is well-known, it would not be correct to say that every chanpe in the phraseology introduced by wav of amendment or re-enactment necessarily implies a change in the law, for it en- tirely depends upon whether the change was merely meant to clarify or to alter the existing law. Such changes are very often made to clear up some ambiguities or to prevent possible misinterpretation and do not, by themselves, justify any inference that the law must have been something different before. No authority should be needed for such a well-established principle of interpretation of Statutes but, if needed, reference may be made to the decision of the Supreme Court in R. P. Kapur v. Pratap Singh Kairon : 1964CriLJ224 . And as I have already pointed out, the report of the Law Cimmission shows that these changes were proposed only to 'clarify' ihe position in law.
8. Be that as it may, on a construction of the relevant provisions of Section 514 (1), I am, as at present advised of the opinion that any bond taken under the provisions of the Code of Criminal Procedure. 1898. including a bond for appearance before a Court, can be forfeited by the Court by which the bond is taken as well as by the Court before which appearance was conditioned and also the Court of the Presidency Magistrate and of the Magistrate of the First Class. And in my view, the second sub-paragraph of Section 514 (1). far from confining the authority to forfeit a bond for appearance only to the Court where appearance was conditioned by such bond, provides such Court as an additional authority to do so in addition to the authorities mentioned in the first sub-paragraph. As I have already noted, a bond 'for appearance before a Court', can obviously, under the express terms of the second sub-paragraph, be forfeited by such Court. But such a bond being also obviously a 'bond under this Code' within the meaning of the first sub-paragraph and not having been otherwise excluded from its operation. I entirely fail to under 1981 Cri. L.J./1008 stand why such a bond cannot be dealt with under the said sub-paragraph and cannot be forfeited by the Courts mentioned therein including even the Court which has taken th0 bond.
9. But even then, the question raised in this revision is not answered. For here, the bond for appearance was taken by the Judicial Magistrate for appearance in the Court of Judicial Magistrate, but has been forfeited by the Additional Sessions Judge, to whose Court the case has been transferred for trial though, under the terms of the bond in question, the accused was not conditioned to appear before him. The Additional Sessions Judge, therefore, not obviously being a Court of the Presidency Magistrate or the Magistrate of the First Class and not also being the Court which took the bond or the Court before whom the bond required the accused to appear, could not forfeit the bond, unless the Court before which the accused is as required to appear under the bond would, in law, include any Court to which the case has been subsequently transferred. As I have already noted, in Section 446 of the new Code of Criminal Procedure, 1973, a Court to which the case has subsequently been transferred, has been expressly authorised to forfeit the bond for appearance, even though the terms of the bond do not command such appearance. But, as I have alrealy pointed out, from this change of law alone, it may not be safe to infer that this could not be done under the earlier Code, by which this case is governed.
10. I will very much like to hold, if I can, that a Court to which a case is subsequently transferred for trial can also forfeit a bond for appearance, though there is no express terms therein requiring appearance, before such Court, because, in my view, it would be conducive to the speedier administration of criminal justice if the Court trying the offence is also empowered to forfeit the bond for appearance in order to ensure the attendance of the offender. This also appears to be the view of the Allahabad High Court in Mustaquimud-din v. Emperor AIR 1926 All 297 : 27 Cri LJ 377, also noted in the Report of the Law Commission where it has been observed that 'any other view of the law would produce most inconvenient results since if an accused were on bail, when a case was transferred, it would in every case be necessary before transferring the case to order his arrest Or to require him to give fresh sureties'. And if I am to hold otherwise, I would be really wondering as to why the transferee Court, which Bets clothed with all the powers of a transferor Court in respect of the offence and the offender, would not get this power to enforce the attendance of the offender before it, though the transferor Court admittedly possessed this power. As the Law Commission has observed, 'it is only proper that the transferee Court should have the same power to deal with such band as the first Court had when the case was in that Court'. The argument on the basis of the principles of the law of contract does not really impress me, the argument being that the contract for appearance or to secure appearance being with a particular Court, can be enforced only by such Court. Because in that case a bond for appearance taken by one Court for appearance before another Court, cannot also be forfeited by the latter, with which admittedly there was no contract, though this power cannot obviously be disputed in view of the provisions of the second sub-paragraph of Section 514. Nor can the Courts of the Presidency Magistrate or of the Magistrate of the First Class can have any general power to forfeit any bond taken under this Code under the first sub-paragraph, for they may not very often be parties to the contract in the bond, but this power, again, cannot be disputed under the provisions of the first sub-paragraph, Nor can a Magistrate discharge the sureties from the bonds of his bond (sic) under Section 502. if the argument based in the principles of contract is accepted and persued. These powers have been derived from the provisions of the Statutes dehors any contract, and. therefore, if such a power can be leaned in favour of a transferee Court from the provisions of the Statute, the absence of any contract and the argument based thereon need not detain us,
11. But on a construction of the provisions of Section 514 (I) along with some other provisions of the Code and also the relevant provisions of Section 446 (1) of the new Code along with the Explanation, it may' be difficult to deduce such power under the provisions of Section 514 (IV in favour of the transferee Court, appearance wherein is not mandated by the terms of the bond.
12. Sections 449 (441?) of the Code, which deals with the bond, of accused and sureties, provides in Sub-section (2) (3?) that ''if the case so requires, the bond shall also bind the person released on bail to appear, when called upon, at the High Court, Court of Session or other Court to answer the charge.' Now, if the position in law is that a Court to which the case has subsequently been transferred can forfeit the bond for appearance, even though the bond does not require appearance before such transferee Court, it is difficult to understand as to why in case of the case being committed or otherwise transferred to the High Court, or the Court of Session or to any other Court, the bond,, in order to be effective to enforce the appearance of the accused, in such subsequent Court, 'shall' have to 'also' bind, the person released on bail to appear in such Court 'to answer the charge.' I am afraid that these .provisions, as contained in Section 499 (2), rather indicate that without such express binding by and in the terms of the bond, the Legislature considered that the High Court, the Court of Session or any Court to which the case may subsequently be transferred, would not be in a position to enforce the appearance of the accused. And if such Courts cannot enforce- the attendance of the accused without an ex-press binding to that effect in the bond for appearance, these Courts cannot obviously forfeit the bonds without any such express undertaking.
13. The Explanation to Section 446 (1L read along with the provisions of the Sub-section, of the new Code, may also favour such a construction. The Explanation runs thus :
A condition in a bond for appearance, or production of property, before a Court shall be construed as including the condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
14. Section 446 (1) clearly provides that 'where a bond under this Code is for appearance ... before a Court and it is proved' to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred. that the bond has been forfeited... the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof...'. It is difficult to understand as to why, after expressly empowering the transferee Court to forfeit a bond for appearance, whether or not such bond was for appearance before such transferee Court, it has been thought necessary to provide for a statutory fiction to the effect that 'a condition for appearance before a Court shall be construed as including a condition for appearance before' such transferee Court. At any rate, this has given rise to a contention, not without any force, that, the transferee Court could not forfeit a bond for appearance, even under the express provisions of Section 446 (1), unless the Explanation thereto expressly provided that the bond 'shall be construed as including a condition for appearance before any Court to which the case may subsequently be transferred.' Have we not been told that the Legislature shall be presumed not to have wasted a single word or to indulge in redundant superfluity
15. In a decision of a three-Judge Bench of the Supreme Court in State of Bihar v. M. Homi : 1955CriLJ1017 relied on by Mr. Saraf, it was held that a condition in the bond to surrender to Deputy Commissioner. Singhbhum, within three days of the receipt of the appellate judgment of the Privy Council, could not be considered to cover the case when the appeal stood transferred to the Federal Court under the provisions of the Abolition of the Privy Council Jurisdiction Act, 1947. and was ultimately disposed of. by the Supreme Court, because there was no term in the bond to the effect that the surety would be bound by any judgment or order given by such other Court as may succeed to the jurisdiction then vested in the Judicial Committee of the Privy Council. This decision is, however, not an authority for the decision of the question as to whether the tranferee Court can forfeit a bond for appearance, when the terms thereof did not expressly require appearance before such transferee Court. It may, however, be treated as an authority for the pro- position that the terms of such bonds are to be strictly construed and reference therein to any Court, after whose final judgment the bond would become operative, would not, by itself, include the successor or the transferee Court and that, therefore, it may be contended that it should logically follow that the Court which took the bond or the Court before whom appearance was conditioned by the bond, would not include the transferee Court to empower the latter to forfeit a bond for appearance.
16. When the attention of the learned Counsel and also the learned Advocate-General was drawn to the two-Judge Bench decision of the Supreme Court in Ramesh Chandra v. State of Uttar Pradesh : 1972CriLJ5 and we asked whether this decision is an authority for the proposition that a transferee Court can forfeit a bond for appearance, though the bond did not expressly require appearance before such Court the learned Advocate-General frankly submitted that though some of the observations made therein, at the first blush, might appear to support such a contention, the decision, as would appear from a proper scrutiny thereof, does not lay down any such broad proposition. I agree with the learned Advocate-General. The bond in question before the Supreme Court was not a 'bond for appearance before a Court' within the meaning of the second sub-paragraph of Section 514, and accordingly, under the express terms of the first sub-paragraph, it could be forfeited by the Court which took it or by the Court of the Presidency Magistrate or the Magistrate of the First Class. And as such, the bond in that case, though taken by one Sub-Divisional Magistrate, could be legally forfeited by another Sub-Divisional Magistrate of the same district, if the latter was also a Magistrate of the First Class. Though it does not expressly appear from the judgment that the forfeiting Sub-Divisional Magistrate was a Magistrate of the First Class, in all probability he was so, as the case was under the provisions of the Essential Commodities Act, 1955 for carrying essential commodities to a prohibited area, and was, therefore, punishable under Section 7 (1) (a) (ii) of the Act with imprisonment up to 3 years at the relevant time (now up to 5 years) and could be tried by a Magistrate of the First Class only, i| is true that the Supreme Court in that case did1 not sustain the order of the forfeiture expressly on this line of reasoning, but upheld it on the ground that the undertaking in the bond was to produce it, not before any particular Court, but before the Court, and 'the word 'Court' in the bond in the present case will mean the Magistrate's Court which dealt with the case'. This decision, therefore, is not and, in the facts and the circumstances of the case, cannot be an authority for any general proposition that a transferee Court can forfeit the 'bond for appearance,' though the terms thereof do not require appearance before that Court.
17. But even assuming that the transferee Court can forfeit a bond of appearance, though the terms thereof do not condition appearance before the transferee Court, the transfer itself must have been legally made. I am, afraid that the order of the Additional Sessions Judge cannot be sustained, even if it was held that a transferee Court has all the nowers to forfeit a bond which a Court which took the bond or before whom appearance was conditioned by the bond had, because the order of transfer, by which the case was transferred to his Court, was itself illegal. As will appear from the Order Sheet, the criminal case, in which the bond in question was even, was pending in the Court of the Judicial Magistrate, but, as will appear from the order dated 9-4-80. 'as per the order of transfer dated 8-4-80. passed by the Hon'ble Sessions Judge', it was transferred to the Court of the Additional Sessions Judge, A Sessions Judge can surely transfer a case under Section 528 'from one Criminal Court to another Criminal Court in the same Sessions Division', 'if he is of opinion that it is expedient for the ends of justice', but, as the relevant provision of Sub-section (1C) would be to show, he can do so only 'on an application made to him in this behalf'. The corresponding provisions contained in Section 408 (2) of the. new Code of 1973, however, expressly authorise a Sessions Judge to order such transfer not only on the application of a party but also 'on the report of the lower Court' or even 'on his own initiative', because, as the Law Commission has observed in its 41st Report, it was 'found desirable that a Sessions Judge should be authorised' to do so, But as already noted, that Code does not govern us here where we are still governed by the old Code. From the records of the trial Court, it does not appear that there was any such application by any of the parties and the learned Public Prosecutor, appearing with the learned Advocate-General, has conceded that there was no such application by any party to the case and that the transfer was effected as a result of a general order passed by the Sessions Judge in respect of a bunch of cases. This, I am afraid, the Sessions Judge could not do, even if he did it with the best of intention. The order of transfer, therefore, cannot stand and must fall and with it falls the jurisdiction of the transferee Court in respect of the case, including the power, if it had any, to forfeit the bond for appearance furnished in that case. The order of forfeiture, therefore, passed by the Additional Sessions Judge must be quashed along with the order of imposition of penalty.
18. One thing before I conclude. In Ramesh Chandra's case (1972 Cri LJ 5) (SO (supra), the High Court did not allow the surety to urge in revision that the forfeiture, of the bond was bad as it 'was executed in one Court and it was forfeited in another Court', on the ground that 'the point had not been raised either before the Magistrate or the Sessions Judge' and on appeal, the Supreme Court held that 'the High Court rightly refused the appellant to urge this ground as to want of jurisdiction' as 'such a plea of jurisdiction is interlaced with question of facts'. I must, however, note that the learned Advocate-General, with his usual fairness, has not contended that the petitioner, in this case is not entitled to urge this ground as to want of jurisdiction in view of the decision in Ramesh Chandra's case (supra) or otherwise. I am also satisfied that the plea raised by the petitioner in this case is not 'interlaced' with any 'question of facts', disputed or otherwise, but is based purely on a construction of the terms of the bond of appearance, the order of transfer and the relevant provisions of the Code of Criminal Procedure and, as such, should be allowed to be raised even according to the decision in Ramesh Chandra's case (supra), the ratio whereof appears to be that such a plea could be raised before the High Court and the Supreme Court, even though not raised earlier, 'without any question of facts and purely on the construction of the bond' and in fact, was allowed to be raised before the Supreme Court, though without success.
19. In the result, the revision, therefore, succeeds and the impugned orders of forfeiture and imposition of penalty are quashed. Though the present revision has not been directed directly against the order of transfer, the same having been found to be illegal and without jurisdiction and such finding being the basis of the present order, must also be quashed in respect of the criminal case in question in which the bond for appearance has been taken, along with all the proceedings taken by the transferee Court of the Additional Sessions Judge pursuant to such order of transfer. The records of the case, therefore, shall go back to the Court of the Judicial Magistrate, where it was pendine before it, was transferred to the Court of the Additional Sessions Judge and the Judicial Magistrate shall proceed with the case and also with the question of forfeiture of the bond of appearance in accordance with law,
Gujral, C.J.
20. I have had the advantage of readings the judgment of my learned brother Bhattachariee, J., ( and though I concur with the final order that the Revision Petition has to be allowed vet I find it necessary to record a separate judgment, as the matter involved is of considerable importance and has been the subject-matter of conflicting decisions by the various High Courts. Moreover, with great respect for my learned brother, I find it difficult to accept the interpretation placed on the first part of Section 514 (1) of the Code of Criminal Procedure, 1898, (hereinafter called the 'Code') especially the expression 'or when the bond is for ap-nearance before a Court, to the satisfaction of such Court'.
21. The facts necessary for the decision of this petition are not in dispute. The petitioner had executed a Surety Bond in the Court of the Judicial Magistrate for appearance of the accused in that Court but the case was subsequently transferred for trial to the Court of the Additional Sessions Judge, where the accused did not appear and the bond was forfeited by the impugned order of the Additional Sessions Judge. The transfer of the cane war, brought about by an order of the. Sessions Judge, Gangtok, which was made suo molu without there being any application for transfer by -my party.
22. While accepting this petition, Bhattachariee, J., has taken the view that the order of transfer was illegal and the Additional Sessions Judge was, therefore, not competent to forfeit the Bond. I fully agree with this view and finding that no useful addition to the discussion regarding this aspect, being possible, with respect. I adopt the reasoning recorded by my learned brother.
23. For facility of reference, the relevant portions of Sections 499 and 514 (1) of the Code may first be set down:
499. (1) Before any person is released en 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 person 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.
(2) If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
514. (1) 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,
or, when the bond is for appearance before a Court, to the satisfaction of such Court,
that such bond has been forfeited, the Court shall record the grounds of. such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.
At the outset, it may be stated that the controversy centres around two aspects of the first part of Section 514 of the Code and may be summarised thus:
(i) Whether in case of a bond for appearance, only a Court where appearance is to be put in, can forfeit the bond or the other three Court:; mentioned in the? first paraphernalia of Ned km 511 of the Code, namely, the Court to whose satis- faction the bond was executed or the Court of a Presidency Magistrate or Magistrate of the first class, can also forfeit the bond.
(ii) Whether the Court to which a case has been transferred for enquiry or trial can also forfeit the bond even though the bond did not contain a commitment that the person released on bail would be required to appear in that Court.
24. Taking up the second controversy first, though there is some authority in favour of the proposition that a transferee Court can forfeit a bond even though the bond did not specifically require appearance in the Court but the clear wordings of Section 514 (1) of the Code interpreted in the light of Section 499 of the Code show preference for the interpretation that a transferee Court cannot forfeit a bond if there is no stipulation in the bond that the appearance will have to be put in the transferee Court also. It may be added that there is overwhelming authority in favour of this view and the observations of the Supreme Court in State of Bihar v. M. Homi : 1955CriLJ1017 further lend support to this interpretation.
25. Before referring to the case law on the point, it would be profitable first to examine the relevant provisions. Section 514 (1), which mentions the Courts which can forfeit the bonds under the Code, makes no reference at all to any Court to which the case may be transferred. From the words 'or, when the bond is for appearance before a Court, to the satisfaction of such Court' occurring in Section 514 (1) it can on no account be inferred that the Court before which the accused is to appear according to the stipulation in the bond, would also include the Court to which the case may be transferred. The language of this Section does not contain even a remote indication that the transferee Court is included within the expression 'such Court'. In fact. Section 499, which relates to the bond of the accused and the sureties, places the matter beyond controversy as its Clause (2) clearly provides that if the case so require, the 'bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge'. If the expression 'such Court' occurring in Sec- tion 514 (1) would include the transferee Court, Sub-section (2) of Section 499 would be rendered redundant as in that case there would have been the necessity of including a condition in the bond that the person released on bail shall also appear in the High Court, Court of Session and other Courts, if so required. The very fact that in case the presence of the accused is required in any of the Courts mentioned in Sub-section (2| of Section 499, it was considered imperative that the bond should indicate such a requirement, would negative any interpretation that the stipulation in a bond for appearance in a Court specified in the bond would include a stipulation to appear in any other Court to which the case may be transferred. Sub-section (1) of Section 499 requires that the bond shall mention the time and place where the accused is required to attend. All these conditions of the bond would have to be strictly construed and any bond which does not contain any of the stipulations mentioned in Section 499 (1) and Section 499 (2) of the Code cannot be forfeited if there is a breach of that stipulation.
26. At this stage it would be appropriate to examine whether assistance can be sought from the relevant provisions of the Code of Criminal Procedure, 1973 (hereinafter called the Code of 1973) which has replaced the Code of 1898, and this brings to the forefront the question whether an earlier Act can be interpreted in the light of a later legislative measure. The question has been considered by Maxwell in his book on the Interpretation of Statutes (Twelfth Edition at pages 69 and 70) in the following words:
How far one may look at a later statute is questionable.' The question was discussed by the House of Lords in Kirkness v. John Hudson & Co. Ltd. 1955 AC 696, where Lord Reid said (at p. 735) that the earlier decision of. the House in Ormond Investment Co. v. Betts 1927-2 KB 326 afforded 'conclusive and binding authority for the proposition that, in construing a provision of an earlier Act, the provisions of a later Act cannot be taken into account except in a limited class of case, and that rule applied although the later Act contains a provision that it is to be read as one with the earlier Act. Of course, that does not apply where the later Act amends the earlier Act or purports to declare its meaning: in such cases the later Act operates directly by its own force. But where the provisions of the later Act could only operate indirectly as: an aid to the' construction of words in the earlier Act those provisions can only be used for that purpose if certain conditions apply to the earlier Act when it is considered by itself. For the later statute to become relevant, there must be something 'obscure or ambiguous, or readily capable of more than one interpretation' in the earlier one, some 'phrase fairly and equally open to divers meanings'. If such an ambiguity can be found, it becomes permissible to look at the later Acts 'not perhaps to construe the earlier statute, but to see the meaning which Parliament puts on the selfsame phrase in a similar context, in case it throws any light on the matter'.
(emphasis supplied)
27. The Supreme Court in I.-T. Officer, Kanpur v. Mani Ram : [1969]72ITR203(SC) has approved the view taken in Kirkness v. John Hudson & Co. Ltd. 1955 AC 696 and has made the following observations:
The argument was that these sections apply to a case of a regular assessment and the enactment of these sections should be treated as a Parliamentary exposition of Section 18A (3) of the earlier Act as referring only to a case of regular assessment. We are unable to accept this argument as correct. There is nothing in 1961 Act to suggest that Parliament intended to explain the meaning or clear up doubts about the meaning of the word 'assessed' in Section 18A (3) of the earlier Act. Generally speaking, a subsequent Act of Parliament affords no useful guide to the meaning of another Act which came into existence before the later one was ever framed. Under special circumstances, the law does however admit of a subsequent Act to be resorted to for this purpose but the conditions under which the later Act may be resorted for the interpretation of the earlier Act are strict: both must be laws on the same subject and the part of the earlier Act which it is sought to construe must be ambiguous and capable of different meaning.
(Emphasis supplied).
28. In an earlier case, in N. A. Mody v. S. A. L. Narayan Row AIR 1967 SC 19,3 the following passage from Craies on Statute Law, 6th Edition was cited with approval (at p. 202) and so was the decision of the House of Lords in Kirkness v. John Hudson :
Except as a parliamentary exposition, subsecuent Acts are not to be relied on as aid to the construction of prior unambiguous Acts. A later statute may not be referred to to interpret the clear terms of an earlier Act which the later Act does not amend, even although both Acts are to be construed as one, unless the later Act expressly interprets the earlier Act; but if the earlier Act is ambiguous, the Later Act may throw light on it, as where a particular construction of the earlier Act will render the later incorporated Act ineffectual.
29. In view of the above exposition of law, before we press the relevant provisions of the Code of 1973 into service, it has to be seen whether this Act purports to declare the meaning of the earlier Act or, in any case, is there any obscurity or ambiguity in Section 514 (1) of the Code or is there any expression or word in this provision which is 'readily capable of more than one interpretation' so as to necessitate reference to the later Act. In my opinion, there is no obscurity and ambiguity and there is no 'phrase fairly and equally open to divers meanings' in Section 514 (V of the Code which will compel reference to the Act of 1973 for its interpretation.
30. Assuming for the sake of argument that there is some ambiguity in the expression 'such Court' appearins in the second paragraph of Section 514 (1) of the Code, let us proceed to examine this provision in the light of the corresponding provision of the Code of 1973. For the reasons recorded herein-after. I am clearly of the view that Sec tion 446 (1) of the Code of 1973 read in the light of Section 441 of the Coda supports the interpretation that the expression 'such Court' occurring in Section 514 (1) of the Code would not include a transferee Court unless the bond for appearance so stipulates. It may first be noticed that whereas Sub-sections (1) and (3) of Section 441 of the Code of 1973 verbatim replace Sub-sections (1) and (2) of Section 499 of the Code, excepting that the word 'require1 has been changed into the word 'requires' to meet the Grammatical a normally in the earlier provision, a considerable change has been made in Section 514 (1) of the Code where re-enacted as Section 446 (1) of the Code of 1973. Section 446 (1) of the Code of 1973 provides that 'where a bond under this Code i. for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.' An explanation to this Sub-section has been added in these words :
Explanation. A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case, may be. for production of property, before any Court to which the case may subsequently be transferred.
A bare perusal of the above would highlight that in the case of a bond for appearance, no Court other than the Court where, under the terms of the bond, appearance was to be put in or the Court to which the case may be transferred can forfeit the bond and the authority to forfeit the bond has not even been left with the Court by which the bond may be taken. The change brought about by the expression 'any Court to which the case may subsequently be transferred' introduced in Section 446 of the Code of 1973 lends supports to the interpretation that without such an express provision, a Court to which a case may be transferred, would not have the authority to forfeit the bond even if the accused does not appear in that Court, unless the bond contains a clear stipulation requiring appearance in the transferee Court.
31. The Explanation added to subsection (1) of Section 446 of the Code of 1973 further throws light on this aspect. It appears that first paragraph of Section 446 of the Code of 1973 was not even found sufficient to clothe the transferee Court with the authority to .forfeit the bond if there is no stipulation in the bond that the accused would be required to appear in the Court to which the case may be transferred. The rationale behind this view appears to be that in the absence of a stipulation in the bond binding the accused to appear in the transferee Court, that Court would not be able to conclude that there has been a breach of the condition of the bond. Section 441 of the Code of 1973 which relates to the bond of an accused and surety, mentions the conditions which are to be incorporated in the bond executed by the accused and the surety, when a person is released on bail and further stipulates that the time and place where the accused is required to attend should be mentioned in the bond. Sub-section (3) of this provision re-enacts Section 499 (2) of the Code and makes it obligatory to include a, condition in the bond that the person released should appear at the High Court, the Court of Session or other Court to answer the charge, if called upon to do so, in case it is required to bind the surety or the accused to this stipulation. The conditions mentioned in Section 441 of the Code of 1973 would have to be strictly complied with and the transferee Court, even if it has the authority to forfeit the bond, would not be able to do so unless there is a condition in the bond requiring appearance in his Court and there has been a breach of that condition. To overcome this difficulty, an Explanation is added to Section 446 (1) which provides that a condition in a bond for appearance should be construed as including a condition for appearance in any Court to which the case has been transferred. Without reading this condition in the bond, which has been made possible by the Explanation, the Court to which a case may have been transferred, would not have been in a position to forfeit the bond even if the accused had not put in appearance in his Court and there was no such stipulation in the bond making it obligatory for the accused to appear there. But for this Explanation, the purpose of the first paragraph of Section 4i6 (1) of the Code of 1973 empowering the transferee Court to forfeit the bond would have been frustrated as Sub-section (3) of Section 441 of the Code of 1973 would have otherwise compelled the interpretation that there would be no breach in the condition of the bond if the accused does not appear in the transferee Court in the absence of a stipulation in the bond to that effect.
32. A close scrutiny of Section 446 (1) read in the light of Section 441 of. the Code of 1973 would brine out that two conditions must be satisfied before a bond for appearance can be forfeited. The Court in which the case is pending or which proceeds to forfeit the surety must have .the authority to do so and the bond must have a stipulation either expressly incorporated or impliedly read into it by operation of law, that in a bend for appearance, the accused would be required to appear in the Court to which the case has been transferred. Unless both these conditions are satisfied, the bond cannot be forfeited. Explanation to Section 446 (1) of the Code of 1973 was added to compel compliance with the second condition in case the bond for appearance had failed to mention expressly that the accused would be required to appear in the. Court to which the case may be transferred. It was to fulfil (his objective and to save the first part of Section 446 of the Code of 1973 from being frustrated that the Explanation was added.
33. Reverting to Section 514 (1), it is clear that there is no specific mention of a transferee Court, as one of the Courts which can forfeit a. bond for appearance. Even if for the sake of argument, it may be accepted that the expression 'such Court' occurring in second paragraph of Section 514 (1) would include a transferee Court it would still not be competent to forfeit the bond in the absence of any express condition in the bond that appearance in that Court would be required under the bond, there being no statutory condition requiring appearance in the transferee Court, as has been introduced by the Explanation to Sub-section (1) of Section 446 of the Code of 1973. In the absence of a deeming provision in Section 514 (1) of the Code that a condition in a bond for appearance in a Court should be construed to include a condition for appearance before a Court to which the case may be subsequently transferred, the only plausible conclusion is that under Section 514 a Court to which a case has been transferred cannot forfeit the bond unless appearance in that Court has been stipulated in the bond itself, for without such a condition there would .be no breach of the condition of the bond even if the accused does not appear when called upon to do so.
34. The stage has now arrived for considering the case law and making a close scrutiny of the reasoning adopted in the cases supporting the opposing viewpoints. I would first deal with cases, which have taken the view that the transferee Court can forfeit the bond under Section 514 (1) of the Code without there being any express condition in the bond requiring appearance in the transferee Court.
35. In the case of Mustaqimuddin v. Emperor AIR 1926 All 2975 : 27 Cri LJ 377, to which reference has been made in a number of subsequent decisions, bonds were furnished in the Court of Cantonment Magistrate for attendance in that Court but as that Court was abolished owing to change in the law, all cases in that Court were transferred to the Court of Special Magistrate. While upholding the order that the bond had been rightly forfeited under Section 514, the learned single Judge, who decided this case, made the following observations:
In my opinion, the terms of the security bond given in Form No. 42 of the Fifth Schedule to the Criminal P. C. are wide enough to include the successor of the Court in which the case originally was. any other view of the law would produce most inconvenient results, since if an accused were on bail when a case was transferred, it would in every case be necessary before transferring the case to order his arrest or to require him to give fresh sureties.
36. It would firstly appear that the decision was in fact based on the terms of the bond As regards the observations that any other view would lead to inconvenient results, with great respect for the learned Judge who decided the case, I would add that too much emphasis was laid on a minor aspect especially when the inconvenience can easily be avoided by introducing, appropriate words in the bond. Moreover, it is well-established rule of interpretation that if the words of a statute are clear and unambiguous, it is not open to Court to ignore the obvious meanings merely because some inconvenience may flow from it. The difficulty envisaged in the above observations can easily be overcome by introducing a stipulation in the bond that a person released on bail would also be required to appear in the Court to which the case may be transferred at any time. I am, therefore, of the view that a sufficient basis for the above observation was not available.
37. Reference then may be made to Parbhu Daval v. Emperor AIR 1927 All 831 : 28 Cri LJ 586. In this case, the bond was for appearance in the Court of City Magistrate in Agra. Subsequently, the surety was directed to produce the accused in the Court of Sub-Divisional Officer of Purnea. This order was passed by the District Magistrate of Afira. The accused absconded on his way to Purnea and later on the surety was directed to produce the accused in the Court of the City Magistrate at Agra. When he failed to do so, the City Magistrate at Agra forfeited the bond. From the above narration, it is clear that the bond was forfeited by the Court in which the accused was required to appear under the terms of the bond and this decision, therefore, is of not much help in resolving the conflict.
38. In the case of Amulya Charan Pal v. Emperor AIR 1934 Cal 785 : 36 Cri LJ 133 a person stood surety for the accused undertaking that he would Produce him in the Court of the Magistrate at Sibsagar till the disposal of the case. Subsequently, the case was transferred to the Court at Dibruearh for trial as the place where the offence was committed was found to be not in Sibsagar but in Lakhimpur District. The accused did not appear at Dibrugarh. The case was sent back to the Magistrate at Sibsagar who issued notice to the surety to produce the accused. As the accused was not produced, the bond was forfeited. The argument that the bond had exhausted itself once the case was transferred to Dibrugarh Court was not accepted and the High Court took the view that the Magistrate at Sibsagar could forfeit the bond as the surety had undertaken to produce the accused in that Court till the case was disposed of and the case had not been decided by them. These facts clearly show that in this case the bond was not forfeited by the transferee Court but by the Court in which the surety had undertaken to produce the accused.
39. In Ballabh Dass v. Rex : AIR1950All667 the bond was executed when the case was pending in the Court of the City Magistrate. Subsequently the case was transferred to the Court of the Judicial Magistrate and the surety failed to produce the accused in that Court. The Magistrate treated the bond as forfeited and ordered the surety to may the penalty. This order was upheld annex the decision was primarily based on an interpretation of the bond that it did not show that the undertaking was only to produce the accused in the Court of the city Magistrate. While interpreting Section 514 it was also observed that 'in the circumstances like those of the present case, the jurisdiction of a Magistrate of the First Class to take action under Section 514 of the Coda is not barred.' The emphasis was again on the particular circumstances of the case and the terms of the bond. Moreover, though some of the cases taking the contrary view were referred to, but their reasoning was not considered in depth. Furthermore, the effect of Section 499 of the Code on the interpretation of Section 514 (1) was not taken into account.
40. Only two more decisions, both of which are of Allahabad High Court, remain to be considered, as in the other case in which similar view has been taken, either these decisions have been followed or no particular reasoning has been advanced for the view that the transferee Court could forfeit the bond even if the bond did not stipulate that the accused would, appear in that Court. In Prem Chand v. State 1955 All LJ 146 the view taken was 'where a surety binds himself to produce the accused person before a Court whenever require until the completion of his trial, his undertaking applies not only to that Court but to all other Courts of competent jurisdiction to which the case might go for trial.' These observations are. however, in the nature of an obiter as in this case the bonds had been forfeited by the very Court in which the bonds had been furnished and not by the transferee Court. The accused had also failed to appear in that very Court and the principal argument was that as the case at an earlier stage had been transferred from the Court of the Sub-Divisional Magistrate, who had taken the bond, to the Court of the Judicial Magistrate, the liability of the surety under the bond had come to an end and that the liability, in any way, was not revived on the case being re-transferred to the Court of the Sub- Divisional Magistrate. For coming to the view that all other Court is to which the case might be transferred for trial were competent to forfeit this bond was mainly based on the observations in Mustaquimuddin v. Emperor 24 AH LJ 327 : 27 Cri LJ 377 to which a reference has already been made.
41. In Inder Singh v. State : AIR1960All419 the accused was standing trial in the Court of Shri N. C. Sharma and the sureties executed a bond undertaking to pay the penalty if the accused failed to present himself in that Court, as long as the preliminary enquiry was to continue or the case was committed to session Later on, the case was transferred to the Court of Shri Jai Chand and ultimately to the Court of Shri G. A. Farooqi. On the failure of the accused to appear before the. Court of Shri Farooqi, the case was transferred back, to the Court of Shri Sharma who forfeited the bond and after calling upon the sureties to show cause directed them to pay the penalty. It is obvious that the bond was ultimately forfeited by the very Court in which it was furnished. It was again not a case where the forfeiture was ordered by the Court to which the case was transferred and the principal question for decision was whether the surety bonds stood discharged as soon as the case was transferred to another Court and not whether without stipulation in the bond ,a transferee Court could compel the sureties to produce the accused in the Court and on their failure, could forfeit the bond. On examination of the question In the light of certain provisions of the Contract Act it was held that the surety bond executed by the applicants remained in force when the case was retransferred to the Court of Shri Sharma and he had the power to forfeit the bond and to impose penalty on the failure of the sureties to produce the accused at the time of trial. It is obvious that the question with which we are concerned is not directly dealt with in this case. Moreover, the liability of the sureties to produce the accused in the Courts mentioned in Section 514 (1) was not considered and in fact no attempt was made to interpret this provision in the light of Section 499, of the Code of 189R. The penal nature of the bond and the local requirement to construe it strictly were also ignored.
42. It may at this stage be observed that though the bond may be in the nature of a contract between a surety and the State but the forfeiture is not claimed on the basis of that contract in a suit filed by the State in a civil Court, but under the penal provision of the Code contained in Section 514. The conditions that can be imposed in a bond are brought out in Section 499 of the Code of 1898 and the Courts which can forfeit the bond are mentioned in Section 514 (1) and it is under these provisions that a penalty of forfeiture can be imposed. The observations of the Supreme Court in State of Bihar v. M. Homi1 : 1955CriLJ1017 that the terms of the bond are penal in nature and must be strictly construed, compel the conclusion that all those cases in which the question has been viewed in the light of the Contract Act alone did not lay down correct law as the view has been formed without reference to the relevant provisions of the Code of Criminal Procedure. 1898 which relate to the conditions of the bond and its forfeiture.
43. Though there are a large number of cases in which contrary view has been taken but I would only deal with a few Pf them in which the controversy has been considered in some depth. In Hira Lal Shahu v. Emperor (1909) 10 Cri LJ 248 (Cal) a surety had executed a bond for appearance of a certain accused before the Court of Session and an order was made by the Deputy Magistrate that the bond may be forfeited as the accused had failed to appear. On these facts, it was ruled as under:
An objection is taken before us that the Deputy Magistrate had no jurisdiction to make this order and a perusal of Section 514, shows that this contention is well-founded. That section in its opening clause deals, first of all. with bonds Generally and then with a bond for appearance before a Court. So far as the bonds generally were concerned, there is a provision that action may be taken by the Court by which the bond has been taken or by the Court of a Presidency Magistrate or a Magistrate of the first class. But in the case of a bond for appearance before Court, the tribunal indicated is that Court there is not other tribunal.
(Emphasis supplied)
44. A similar view was taken in Maung Nge v. Emperor AIR 1925 Rang 153 : 26 Cri LJ 389. While construing the provisions of Section 514 (1) it was observed that ''where the bond is for appearance before, a Court', it was necessary that the forfeiture should be established to the satisfaction of the court before which the accused was bound by the bond to appear, and that was the proper Court to exercise the power. For this view, reliance was placi-ed on the decision in Re Rabenfels (AIR 1930 Cal 97): (31 Cri LJ 215) and on the observations made in that case that the bond must be construed strictly and that it will not authorise the forfeiture of the amount of bond in the case of failure to appear in the Court to which the case is transferred, if the obligation to appear in that Court has not been specified in the bond.
45. Support for this construction was also sought from Sub-section (2) of Section 499 in the following words:
This construction is also borne out by a reference to Sub-section (2) of Section 499, which expressly provides that, if the case so requires, the bond shall also bind the person released on bail to appear, when called upon, in the High Court, Court of Session or other Court to answer the charge. This provision when read with Sub-section (1) means that the bond must expressly provide for such contingencies. The present bond did provide for the contingency of a trial before a Court of Session, but it omitted to provide for trial before any other Magistrate than the District Magistrate.
46. In Emperor v. Chintaram AIR 1936 Nag 243 : 38 Cri LJ 100, Vivian case, J., following the view taken in the case of Rabertfels, referred to above, held as follows:
Bail proceedings are special proceedings about which there are specific directions in the Code, and they must be strictly followed. Section 499. Criminal P. C. states that the time and place at which the accused is to appear must be mentioned in the bond, and Clause 2 of that section states that if the accused is to appear in some other Court the bond must expressly say so. It is not open to Courts to depart from these express provisions.
Where a person executes a surety bond under Section 499, undertaking to produce the accused in a particular Court there Is no undertaking by him to pro- duce him in ; any other Court, Where therefore the surety fails to produce the accused in totally different.. Court it does not amount to a breach of the bond and the surety cannot be .held liable: The surety cannot be held responsible under the terms of a document which do not only to the circumstances of the case.'' While construing Section 409. the argument that the undertaking was to pro-duce the accused till decision of the case was repelled in these words:It was argued by the learned Government Advocate that the undertaking, was to produce him 'till decision'. If that is so, it was beyond the power of the Court to insert such a condition in the bond, for Section 499 is exhaustive of the conditions which can be imposed on sureties. The matter is not like an ordinary contract in which parties are at liberty to choose their own terms. It is a special proceeding governed by special laws and must conform strictly to them.
47. In Ballabhdas Motirqm v. Emperor AIR 1943 Bom 178 : 44 Cri LJ 549, though no reference was made to the earlier decisions but the same view was taken and it was concluded that 'where by a bond an accused binds himself to attend in a particular Court but fails to appear in another Court to which the case is subsequently transferred, it cannot be. said, on the .construction of the bond, that the accused has broken the condition of the bond'. On the basis of the wordings of Section 514, it was further pointed out that 'where an accused executes a bond to appear before a particular Court it is that Court alone which has jurisdiction. to forfeit the bond and not the Court to which the case is subsequently transferred'.
48. Following the above decision of the Bombay High Court, the Patna High Court in Karali Charan v. The King AIR 1949 Pat 196 : 50 Cri LJ 462 took the same view.
49. In Bhoop Singh v. State of Madhya Bharat AIR 1954 Madh B 8 : 1954 Cxi LJ 334 the view taken in AIR 1936 Nag 243 : 38 Cri LJ 100 and AIR 1943 Bom 178 : 44 Cri LJ 549 was accepted as correct and the case of Mustaauimuddin v. E_mperor AIR 1926 All 297 : 27 Cri LJ 377 was distinguished.
50. The case of Puttu Lal v. State : AIR1956All705 would need consideration at some length The accused in that case was granted bail and the bail bond specified that the sureties undertook to produce the accus-ed in the Court of the Judicial Magistrate, Kaimgani during the hearing or in the Court of the Sessions Judge. The case was subsequently transferred to the Court of the Judicial Magistrate, Sadar and on one of the dates the accused did not appear. The bail bond was forfeited and in the revision it was contended that as the undertaking was to produce the accused before the Judicial Magistrate, Kaimgani, the Judicial Magistrate. Farrukhabad had no power to order forfeiture and in any case failure of the accused to appear before the Judicial Magistrate, Farrukhabad did not amount to any breach of the terms of the bond. In view of the conflict of decisions, the case was referred to Division Bench. The learned Judges who decided the case examined all the earlier decisions of the Allahabad High Court including Mustaquimuddin v. Emperor (1926) 27 Crl LJ 377. Ballabhdas v. Rex : AIR1950All667 and Prem Chand v. State 1955 AJ1 LJ 146 which have been discussed in the earlier part of this judgment. It was noticed that Mustaqui-muddin's case was decided on the terms of the particular bond in question and it was observed that on the basis of that 'it cannot be said that in all cases where the terms of the bond are express that the surety has undertaken to produce the accused before a particular Magistrate, he has forfeited the bond if the accused fails to appear before some other Court which is the successor of that court'. With regard to Ballabh Dass case the observation was that it was decided on the terms of the bond and was distinguished for that reason. The Division Bench noticed the observations made in Prem Chand's case but unfortunately did not either accept those observations or overrule the decision in that case. However, the observations of the Supreme Court in State of Bihar v. M. Homi that the terms of the bond should be strictly construed were noticed and it was further observed as follows:
In order to decide whether the undertaking given by sureties has been Violated, the terms of a bond have Hot to be strictly construed and if under the terms of the bond, the undertaking Given by sureties is to produce the accused before a particular court specified therein, the failure of sureties to produce the accused before any other court; to which the case has been transferred, cannot be regarded as any breach of the terms of the bond.
51. The above observations leave no manner of doubt that the view expresed in the single Bench decisions, namely, Mustaquimuddin v. Emperor AIR 1926 All 297 : 27 Cri LJ 377, Ballabh Dass v. Rex AIR 1950 All 677 and Prem Chand v. State 1955 All LJ 146 was not accepted as a correct exposition of law, by the Division Bench in Puttu Lal's case.
52. Reference then be made to 1957 Cri LJ 138 (Mad) in which the bond executed by the sureties was for the production of the accused in the Court of the Third Presidency Magistrate at Saidaoet. The case was subsequently transferred to the Court of the Chief Presidency Magistrate at Calcutta under the orders of the Supreme Court. On the failure of the accused to appear in Calcutta, the Third Presidency Magistrate was asked to secure the production of the accused or to take action against the sureties. The surety appeared and took un the objection that by reason of the transfer of the case, he was not bound to produce the accused and the bond could not be forfeited. This contention was examined by the High Court. Following the decision of the Rangoon High Court in AIR 1925 Rang 153: (26 Cri LJ 389) and some other cases, Ramaswami, J., who decided the case, observed that a surety bond in a criminal case must be strictly construed and the surety can be required to forfeit the amount of the bond only if the terms of the bond are broken. While interpreting Section 490 and Section 514, of the Code, the following observations were made:
'Bail proceedings are special proceedings about which there are specific directions in the Code and they must be strictly followed. Section 499 CrI.P.C. states that the time and place at which the accused is to appear must be mentioned in the bond, and the second clause of that section states that if the accused is to appear in some other court, the bond must expressly say so. It is not open to courts to depart from these express provisions'.
Section 514 CrI.P.C. also indicates that the place of appearance must be expressly stated in the bond. It deals with two positions. The first is when a bond is taken by a court for appearance, not before a court, but elsewhere. In that case certain courts alone have jurisdiction to determine whether the bond has been forfeited. The second is where the bond is for appearance before a court, and in that case only the court before whom appearance is to be made can determine whether the bond has been forfeited or not. It is clear that this provision cannot be satisfied unless and until the court before whom the appearance is to be made is expressly stated in the bond.
53. Lastly, the decision of the Supreme Court in State of Bihar v. M. Bomi 1955 Cri LJ 1017 (SC) may be considered. In this case, the bond was executed by the surety and contained an undertaking to pay the penalty in case the accused fails to surrender to the Deputy Commissioner, Sirtghbhum within three days of receipt of the notice of the order or judgment of the Judicial Committee. As a result of the constitutional changes, the jurisdiction of the Judicial Council came to be transferred to the Federal Court and the appeal of the accused in due course was heard by the Supreme Court. On the dismissal of the appeal, the Deputy Commissioner issued notice to the surety to produce the accused within three days and on their failure to do so. they were called upon to show cause why their bond should not be forfeited. On this score, the Supreme Court made the following observations:
Held that in view of the clear provision in the bond the terms of which being penal in nature must be very strictly construed, it could not be said that the contingencies contemplated by the parties had occurred. There was no judgment or order of the Judicial Committee upholding either in part or in whole the sentence against the accused. As the terms of the bond so construed could not be said to have been fulfilled, the penalty stipulated had not been incurred. It must therefore be held that the proceedings taken against the sureties were entirely misconceived.
54. From the above observations it would logically follow that while construing a bond, regard must be had to the fact that it. is of penal nature and it must be construed strictly. It would further follow that on a strict construction of the bond, a reference in it to a Court cannot include a reference to a successor, Court much less to n transferee Court.
55. On a consideration of the case-laws on the point and the relevant pro-visions I am clearly of the view that, both oh the' basis of authority and reason, the only j' conclusion possible is that the bond cannot be forfeited for failure of the accused to appear in the transferee Court if there was no such stipulation 'in the bond. The terms of the bond have to be strictly construed and the penalty of forfeiture can only be imposed if there is a departure from those terms. Failure to comply with the, terms which is not specified in the bond cannot result in its forfeiture. '
56. This brings us to the second limb of the controversy, namely, which Court can forfeit the bond. The first paragraph of Section 514 (1) of the Code of 1898 states that a Court by which a bond under this Code has been taken, or the Court of a Presidency Magistrate, or Magistrate of the first class can forfeit the bond. It has also been held in some of the cases that a bond for appearance being also a bond under the. Code. :these three Courts have the jurisdiction to satisfy themselves that the bond has been forfeited. On the other hand, on the basis of specific words of the second paragraph of Section 514 (1) of the Code which states 'or, when the bond is for appearance; before a Court, to the satisfaction of such Court' it has been held that so far as a bond for appearance is concerned, only the Court before whom appearance was to be made, has the jurisdiction to forfeit the bond.
57. At this stage, I would like to mention that this point in fact does not arise in this case as the bond was not forfeited by any of the Courts mentioned in the first and the second paragraph of Section 514 (1). I am, therefore, not expressing any final view in this matter. As at, present advised, however, I feel that the view that in case of a bond for appearance,' only the Court before which appearance is to be made can forfeit the bond seem to be more plausible. A bond for appearance is no doubt a bond under the Code' but with regard to this category of bonds, specific provision has been made in the second paragraph of subsection (1) of Section 514 and it- would appear that the intention of the Legislature was that this catagory of bonds should only be dealt with under this paragraph and not under the first paragraph. The first paragraph of Section 514 (1) deals with all kinds of bonds taken under the Code. However from the phraseology of the second paragraph, it appears that the area covered by this was intended to be taken out of the area covered by the first paragraph. If the Legislature intended to add another Court to the three Courts mentioned in the first paragraph which could forfeit the bond, the placing of the words would have been entirely different and the relevant words may have read as 'or, a Court in which appearance was required'. By expressly mentioning 'a bond for appearance', the Legislature intended to take out this category out of the categories falling within paragraph 1 of Section 514(1) of the Code.
58. There is also another aspect of the matter. Even if, for the sake of arguments, it may be accepted that all the four Courts mentioned in Sub-section (1) of Section 514 are entitled to forfeit the bond, there is no scope for any controversy that the bond can only be forfeited in case there is a clear mention in it that appearance of the accused would be required not only in the Court in which the case was pending but also in he Court to which it may be transferred subsequently. If in the bond, there is no such condition and a case is transferred to the Court of a Presidency Magistrate or a Magistrate of the First Class, even these Courts will not be able to forfeit the bond in case the accused fails to appear, as the surety had not undertaken to produce the accused in these Courts on transfer of a case. The question as to which Court can forfeit the bond is quite distinct from the controversy as to under what circumstances the bond can be forfeited. On a plain reading of Section 499, which deals with the execution and the terms and conditions of the bond, it is clear that the terms of the bond have to be strictly complied with and that no condition which is not mentioned in Section 499 can be included in a bond, These conditions relate to the time and place where the appearance is to be put in and this would include the Court in which he accused is required to appear. Subsection (2) of Section 499 further makes it obligatory to mention other Courts if it is intended that the case may be transferred to any of those Courts and the accused is required to put in appearance in the transferee Court. Sub-section (2) of Section 499 is not capable of any other meaning and in any case whatever doubt had been felt has now been resolved by the inclusion of the Explanation to Section 446 (1) of the 1973 Code. In view of this Explanation, it is abundantly clear that unless there is a condition jn the bond either expressly imposed or introduced by a legal fiction that the bond will also bind the person released on bail to appear in the Court to which the case may be transferred, the failure of the accused to appear in the transferee Court cannot result in the forfeiture of the bond. It would mike no difference if the transferee Court is the Court of the Presidency Magistrate or the Magistrate of the First Class or even the Court by which the bond was taken unless the bond specified that appearance in any of those Courts would be a condition of the bond.
59. In the end. because of the view we have taken about the illegal nature of the transfer of the case to the Court of the Additional Sessions Judge. I concur with the proposed order that the impugned order of forfeiture and imposition of penalty is quashed, with the direction that the records of the case be sent back to the Court of the Judicial Magistrate for proceeding in accordance with law.