Research › Browse › Judgment

Allahabad High Court · body

1957 DIGILAW 259 (ALL)

Rameshwar Dayal v. State

1957-08-01

R.K.CHOWDHRY

body1957
JUDGMENT R.K. Chowdhry, J. - This is an application in revision by one Rameshwar Dayal against an order of forfeiture of bond u/s 514, Code of Criminal Procedure, passed by the Sub-Divisional Magistrate of Faridpur in the district of Bareilly. 2. It appears that a number of persons, including one Umar, were being tried for an offence u/s 60, Excise Act, in the court of the Sub-Divisional Magistrate of Baheri in the said district, and that the applicant stood surety for Umar's appearance in that court and executed a bond in the sum of Rs. 250 as penalty for Umar's non-appearance. On Umar-failing to make his appearance, the Sub-Divisional Magistrate of Baheri called upon the applicant to show cause why the penalty be not paid. The applicant showed cause but the same was not accepted by the Sub-Divisional Magistrate of Faridpur, who passed the following order on 23-1-1954. The applicant should deposit Rs. 150 as penalty under the circumstances mentioned in the application. Issue non-bailable warrant against Umar. The penalty should be deposited by 30-1-1954. It will be noticed that in passing the above order the Sub-Divisional Magistrate of Faridpur remitted a portion of the penalty and sought to enforce payment in part only. The applicant appealed against this order, but his appeal succeeded only to this extent that there was a further remission of penalty and payment of Rs. 50 was to be enforced. Rameshwar Dayal has now come up in revision to this Court. 3. The sole ground taken here on behalf of the applicant is that the aforesaid order was an order passed without jurisdiction in that it was passed, not by the Sub Divisional Magistrate of Baheri, but by the Sub-Divisional Magistrate of Faridpur. This contention appears to be well-founded in view of the clear provisions of Section 514, Code of Criminal Procedure. The sole ground taken here on behalf of the applicant is that the aforesaid order was an order passed without jurisdiction in that it was passed, not by the Sub Divisional Magistrate of Baheri, but by the Sub-Divisional Magistrate of Faridpur. This contention appears to be well-founded in view of the clear provisions of Section 514, Code of Criminal Procedure. The relevant provisions of the section are as follows: (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. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead. The two clauses are followed by five others the first three of which relate to attachment and imprisonment for realisation of the penalty and to remission of any portion of the penalty. 4. The first clause relates to initiation of proceedings and to the passing of the order of payment of penalty by the person bound by the bond or of his being required to show cause why it should not be paid, and the second to the court proceeding to recover the penalty in case of sufficient cause not being shown and the penalty not being paid. It will be noticed that although the first clause speaks generally of the satisfaction of three kinds of Courts in the matters of initiation of proceedings and the passing of order of payment of penalty, viz. It will be noticed that although the first clause speaks generally of the satisfaction of three kinds of Courts in the matters of initiation of proceedings and the passing of order of payment of penalty, viz. the Court by which a bond under the Code has been taken, the Court of a Presidency Magistrate and a Magistrate of the First class, it speaks of the satisfaction of only one of the said courts in the specific case of a bond for appearance before a Court, namely, the Court before which appearance under the bond is to be made. It follows necessarily that in this specific case "the court" taking proceedings under the second clause to recover the penalty and under the subsequent clauses to pass orders of attachment, imprisonment and remission is the same-the Court, that is, before which appearance under the bond is to be made. 5. The question of jurisdiction to forfeit a bond for appearance before a Court as provided by the second paragraph of Clause (1) of Section 514, Code of Criminal Procedure, is well covered by authority. In Hira Lal Sahu v. Emperor, 10 CrLJ 248 it was to held by a Division Bench of the Calcutta High Court that where the bond is for appearance before the Court of Session, the Deputy Magistrate had no jurisdiction to make the order of forfeiture. Where an accused gave a personal bond for appearance before a Magistrate and failed to appear before him on the date fixed and a notice was issued to him to show cause why the bond should not be forfeited, and in the meantime the case was transferred to another Magistrate, it was held by a Division Bench of the Bombay High Court in In re Mir Husen Abdul Rahmans 15 CrLJ 295 that the later Magistrate had no jurisdiction to order forfeiture of the bond. This was also one of the grounds of decision by another Division Bench of that Court in Ballabhdas Matiram Gupta v. Emperor. AIR 1943 Bom. 178 A single Judge of the Lahore High Court held in Kashi Ram v. Emperor 34 CrLJ 952 that a District Judge has no jurisdiction to enforce a bond for appearance which had been taken by a criminal court. AIR 1943 Bom. 178 A single Judge of the Lahore High Court held in Kashi Ram v. Emperor 34 CrLJ 952 that a District Judge has no jurisdiction to enforce a bond for appearance which had been taken by a criminal court. Mulla, J. held, inter alia, in Brahma Nand Misra v. Emperor 1939 AWR (H.C.) 696 as follows: When the bond has been taken by some court it is that court alone or the court of a Presidency Magistrate or of a Magistrate of the first class that can initiate a proceeding u/s 514 Code of Criminal Procedure for determining whether a bond has been forfeited. When the bond is for appearance before a particular court it is again only that court which can start a proceeding u/s 514, Code of Criminal Procedure for determining whether the bond has been forfeited. 6. The view taken in the 1943 Bombay case cited above was followed by Agarwala, C.J. of the Patna High Court in Kali Charan chatterji v. The King. 50 CLJ 462. It would thus appear that where the question of forfeiture of a bond for appearance before a Court arises, that Court, and that court alone, has the jurisdiction to pass the various orders contemplated by the section. 7. The matter has some times been decided on the terms of the bond sought to be forfeited. In a certain class of cases the same result may ensue whether judged on the terms of the bond or the provision in the second paragraph of Section 514, Code of Criminal Procedure. These will be the cases where appearance under the bond is to be made before one Court and failure to do so occurs in another. The recent decision of a Division Bench of this Court reported as Puttu Lall v. State 1956 AWR (H.C.) 290 is an instance of such a case. The undertaking by the sureties was for the appearance of the accused in the Court of the Judicial Magistrate Kaimganj but the failure of appearance occurred in the Court of the Judicial Magistrate Sadar, to which court the case had been transferred. It was held on an interpretation of the terms of the bond, that there was no breath of the same. It was held on an interpretation of the terms of the bond, that there was no breath of the same. Under the aforesaid provision of the Code as well, the bond having been for appearance before the Judicial Magistrate Kaimganj, proof as to its forfeiture should have been to his satisfaction and not to the satisfaction of the Judicial Magistrate Sadar. 8. There is however another class of cases which are determinable, not on the terms of the bond, but only under the aforesaid provision of the Code of such cases the present is an illustration in point. The terms of the bond may be broken and yet the order of forfeiture may be without jurisdiction because it is passed as a result of satisfaction of a court other than the one before which appearance under the bond was to be made. Not every case is therefore disposable merely on the terms of the bond. Whether it is so disposable or on the terms of the aforesaid provisions of the Code will depend on the facts of each case. 9. In the present case the bond was for appearance before the Sub-Divisional Magistrate of Baheri, and there is no doubt that its terms were broken since failure of appearance occurred in that court. 10. The order in question, which was composite order under Clauses (1), (2) and (5) of the section, could therefore be passed on the satisfaction of only that court. That being so, the Sub Divisional Magistrate of Faridpur had no jurisdiction to pass that order, so that the order passed by him was null and void. 11. The learned Sessions Judge held in appeal that the Sub-Divisional Magistrate of Faridpur had the jurisdiction to pass the order because he was, what he called, a "link officer" of the Sub-Divisional Magistrate of Baheri. This argument was reiterated in this Court by the learned Counsel appearing for the state. He was, however, unable to say what exactly a link officer is. The learned Counsel submitted that a link officer is one who acts in the absence of the principal officer. He was unable to support this submission by reference to any order or notification under which such an arrangement had been made. In any case, this supposed authority of a "link Officer" to act for the principal officer could only be to perform administrative or mere ministerial duties. He was unable to support this submission by reference to any order or notification under which such an arrangement had been made. In any case, this supposed authority of a "link Officer" to act for the principal officer could only be to perform administrative or mere ministerial duties. It could not possibly have any reference to one officer acting Judicially for another since the Code of Criminal Procedure makes no provision for the same. There is no such thing as a link officer in the hierarchy of courts mentioned in Part II of the Code, nor any provision for delegation of powers of one Sub Divisional Magistrate to another. Even supposing that the Sub Divisional Magistrate of Faridpur was a "link Officer" of the Sub Divisional Magistrate of Baheri, whatever other functions the former may have been competent to perform for and on behalf of the latter, this locum-tenency could not extend to the passing of a judicial order u/s 514 of the Code. 12. Agreeing with the contention of the learned Counsel for the applicant that the order of forfeiture passed in the present case against the applicant was an order passed without jurisdiction, the application in revision is allowed and the order of forfeiture is set aside. Should any amount have been realised already as a result of the forfeiture, the same shall be refunded to the applicant.