MOHAMMED KUNJU AND ANR. versus STATE OF MAHARASHTRA

Citation: [1999] SUPP. 4 S.C.R. 247 · Decided: 29-10-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Disposed off

Judgment (excerpt)

- ' 
MOHAMMED KUNJU AND ANR. 
A 
v. 
STATE OF MAHARASHTRA 
OCTOBER 29, 1999 
[K.T. THOMAS AND M.B. SHAH, JJ.] 
B 
Code of Criminal Procedure, 1973 : Sections 444, 446. 
Bail-Sureties-Liability of-Foreign national-Trial of-Bail granted on 
specified conditions-Surety by two persons-Bond of rupees twenty thousands C 
by each surety--One of the conditions of bail subsequently relaxed-Accused 
jumped bail-Forfeiture of bail bonds-Penalty on sureties-Order to surety 
to pay amount of bond-Order of penalty unsuccessfully challenged in appeal 
before Court of Session-High Court entertained further appeals but dismissed 
on merits-Appeal before Supreme Court-Held, modification of bail 
condition does not absolve the surety of his liability-Both sureties cannot D 
claim to share the amount half and half-Each surety is liable to pay the 
amount of surety given by him-Court has power to grant remission-
Remission granted to both sureties-Each surety directed to pay penalty of 
rupees jive thousand only. 
ss.449 (i) and (ii)-Order passed by Magistrate under clause (i)-
Appeal before Court of Session-Held, no further appeal lies to High Court-
Clause (ii) will not apply in such cases. 
c 
. JC. 
E 
A foreign national, on trial, was released on bail by t~~ Chief 
Metropolitan Magistrate, .Bangalore City on conditions specified in the bail F 
order. In conformity with the conditions imposed each of the two appellants 
furnished a surety bond for Rs. 25,000. On an application filed by the accused 
the Chief Metropolitan Magistrate relaxed a condition imposed earlier on the 
accused while passing the bail order. The accused jumped bail and the 
appellants expressed their inability to produce the accused. The bail bonds G 
were thus forfeited and each of the appellants was ordered to pay the surety 
bond amounting to rupees twenty five thousand to the Government. The appeals 
preferred by the appellants were dismissed by the Session Court. The High 
Court entertained fprther appeals but dismissed them on merits. Hence these 
appeals. 
247 
H 
248 
SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R. 
A 
Disposing the appeals, the Court 
HELD: I. If there is forfeiture of the bond executed by the surety due 
to the default of the accused in making appearance before the court it is open 
to the court concerned to resort to the steps contemplated in Sections 446 of 
the Code of Criminal Procedure as against the sureties, besides the accused 
B himself. The most essential element of tile bail order is for ensuring the 
attendance of the accused in the court whenever required. In fact, that is the 
hub of the order and the other c;onditions are only subsidiary thereto. So long 
as that core postulate remains unchanged a surety cannot take advantage of 
any subsequent modification effected in respect of any other conditions. If a 
C surety is not agreeable to abide by the modified conditions he must apply to 
the court under Section 444(1) of the Code to discharge him. Until the surety 
is discharged he is bound by the bond·and any modification or even deletion of 
a condition of the order cannot absolve him from his liability in respect of the 
unaltered conditions. (253-A-B; 252-G, HJ 
D 
State of Bihar v. Homi, AIR (1955) SC 478, distinguished. 
E 
2. The forfeiture of a bond would entail penalty against each surety for 
the amount which he has undertaken in the bond executed by him. Both the 
sureties cannot claim to share the amount by half and half as each can be 
made liable to pay the amount of Rs. 25,000. (253-G-H) 
Ram Lal v. State of U.P., AIR (1979) SC 1498, relied on. 
3. Under section 446 (3) of the Code of Criminal Procedure it is within 
the discretion of the court to grant remission and to decide the extent of the 
F remission. Such a discretion must be exercised judicially and for good reasons. 
In the present case, though the offences charged against the foreign national 
are not trivial they are nevertheless not very serious comparatively. He slipped 
out of the country without anybody's knowledge. There is no allegation that 
the appellant had any remote scent that the accused was preparing to escape 
from India, nor that he had connived with the accused jumping out the bail. 
G Therefore, remission is granted to the extent that each appellant need to pay 
Rs. 5,000 as penalty. (254-A, B, C, D, E) 
Madhu Limaye v. Metropolitan Magistrate & Ors., (1984) Suppl. SCC 
699, referred to. 
H 
4. The order in this case was passed by the

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