SHAIKH MOHMAD AFZAL SHAIKH MOHMAD HUSAIN v. STATE — 1967 DIGILAW 114 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is an appeal filed by the surety Shaikh Mohmad Afzal Shaikh who stood as a surety of one Samsuddin Sakur who was the accused No. 1 in a Criminal Case No. 701 of 1966. It appears from the record of the case that one Sherinkhan was a co-accused in that case. He was accused No. 2. It appears from the order dated 14-10-1966 passed by the learned City Magistrate Mr. L. N. Bhatt that the present appellant stood as a surety of Samsuddin on 21-4-1966 and executed a surety bond. From 13-5-1966 the accused was not coming. The surety was not available and it seems that he was avoiding the service of the notice. A notice was affixed at his house and still he had not appeared. So the bond of Rs. 2 0 executed by the surety Shaikh Mohmad Afzal Shaikh Mohamed was forfeited and an attachment was ordered to be issued to recover Rs. 2 0 from his immovable property. It is the say of the appellant that he came to know about this order which has been passed in his absence on or about 18-1-1967 and thereafter filed the present appeal challenging the correctness of the aforesaid order. ( 2 ) THIS order has been passed by the learned City Magistrate Ahmedabad under sec. 514 of the Criminal Procedure Code. The question that arises for consideration first is whether such an order passed by the learned City Magistrate is appealable under sec. 515 of the Criminal Procedure Code. Sec. 515 of the Criminal Procedure Code in its application to this State of Gujarat runs as under:-ALL orders passed under sec. 514 by an Executive Magistrate other than the District Magistrate shall be appealable to the District Magistrate and by a Judicial Magistrate other than a Presidency Magistrate to the Sessions Judge and If no appeal is made against such orders they may be revised in the case of the orders passed by an Executive Magistrate by the District Magistrate and in the case of the orders passed by a Judicial Magistrate by the Sessions Judge. A plain reading of this section clearly indicates that if an order is passed under sec. 514 by an Executive Magistrate other than the District Magistrate the order shall be appealable to the District Magistrate. A plain reading of this section clearly indicates that if an order is passed under sec. 514 by an Executive Magistrate other than the District Magistrate the order shall be appealable to the District Magistrate. If the Order is passed by a Judicial Magistrate other than a Presidency Magistrate it shall be appealable to the Sessions Judge. It further indicates that if no appeal is made against such orders they may be revised in the case of the orders passed by an Executive Magistrate by the District Magistrate and in the case of the orders passed by a Judicial Magistrate by the Sessions Judge. It does not state that if an order is passed by a Presidency Magistrate appeal shall lie to the High Court. It is also not stated therein that if the order is passed by the District Magistrate appeal shall lie to the High Court. It therefore appears that the intention of the Legislature is to give a right to appeal in case of orders passed under sec. 514 of the Criminal Procedure Code only if those orders are passed by an Executive Magistrate other than a District Magistrate or orders are passed by a Judicial Magistrate other than a Presidency Magistrate. In case such orders are passed either by a District Magistrate or by a Presidency Magistrate it appears that the intention of the Legislature is that such orders are not appealable. Chapter XXXI deals with a topic regarding Appeals. Sec. 404 of the Criminal Procedure Code states:-NO appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law from the time being in force. Sec. 18 of the Criminal Procedure Code deals with a topic regarding Appointment of Presidency Magistrate. Sec. 17 of the Criminal Procedure Code states:-ALL Judicial Magistrates appointed under secs 12 and 14. . . . shall be subordinate to Sessions Judge. . . . Sec. 12 of the Criminal Procedure Code deals with a topic regarding the appointment of Judicial Magistrates outside Greater Bombay. Sec. 17 of the Criminal Procedure Code states:-ALL Judicial Magistrates appointed under secs 12 and 14. . . . shall be subordinate to Sessions Judge. . . . Sec. 12 of the Criminal Procedure Code deals with a topic regarding the appointment of Judicial Magistrates outside Greater Bombay. Sec. 17b States that:-COURTS of Sessions and Courts of Magistrates (including Courts of Presidency Magistrates) shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay shall be Criminal Courts inferior to the Court of Sessionsthat section therefore indicates that Courts of Presidency Magistrates are Criminal Courts inferior to the High Court. Sec. 404 of the Criminal Procedure Code clearly indicates that no appeal can lie from any judgment or order of a Criminal Court except as provided for by the Criminal Procedure Code or by any other law for the time being in force. A Court of City Magistrate is a Criminal Court. In view of the provisions of sec. 404 it is evident that no appeal can he from any judgment or order of that Court unless it is provided for by Criminal Procedure Code or any other law for the time being in force. The Courts of City Magistrates came into existence on coming into force of the Ahmedabad City Courts Act 1961 at Ahmedabad. Sec. 14 of that Act deals with a topic regarding the appointment of Magistrates in the City of Ahmedabad. Sec. 15 of that Act states:-IN the Criminal Procedure Code after the words presidency town and the words Greater Bombay wherever they occur the words City of Ahmedabad shall be substituted. unless the context otherwise requires. Sub-sec. (3) of sec. 14 of that Act states:-THE Chief Magistrate and any other Magistrate appointed under sub-sec. (1) shall have and exercise within the limits of the City of Ahmedabad all the powers and jurisdiction of the Chief Presidency Magistrate and a Presidency Magistrate respectively under the Criminal Chief Procedure Code and all other laws for the time being in force and the provisions of that Code and such laws shall apply to such Chief Magistrate and Magistrate as they apply to the Chief Presidency Magistrate and as Presidency Magistrate and shall be construed accordingly. These relevant sections of the Ahmedabad City Courts Act 1961 clearly indicate that the City Magistrates in Ahmedabad are equated with the Presidency Magistrates of Bombay and they have been given the same powers under the Criminal Procedure Code as they are given to the Presidency Magistrates. It will be significant to note that sec. 411 of the Criminal Procedure Code clearly provides that:-ANY person convicted on a trial held by a Presidency Magistrate may appeal to the High Court if the Magistrate has sentenced him to imprisonment or to fine exceeding two hundred rupeessimilarly sec. 406a of the Criminal Procedure Code provides that:-ANY person aggrieved by an order refusing to accept or rejecting a surety under sec. 122 may appeal against such orderif made by a Presidency Magistrate to the High Court;. . . . . IT is thus evident that in case of orders passed by the Presidency Magistrate in case of conviction and in cases when an order is passed refusing to accept or rejecting a surety under sec. 122 of the Code a specific provision has been made for giving a right of appeal against such orders to the High Court as has been done in case of other Magistrates. In cases of orders passed under sec. 514 of the Criminal Procedure Code by an Executive Magistrate other than the District Magistrate as well as by a Judicial Magistrate other than a Presidency Magistrates provisions have been made for giving a right of appeal. So far as the orders passed under sec. 514 of the Criminal Procedure Cede by a Presidency Magistrate i. e. by the Ahmedabad City Magistrate in this State are concerned there is no provision made that such orders are appealable and that those appeals will lie to the High Court. I therefore hold that such orders passed by the learned City Magistrate Ahmedabad are not appealable. The appeal therefore does not lie. ( 3 ) SEC. 435 of the Criminal Procedure Code empowers the High Court to call for and examine the records of any proceedings before any inferior Criminal Courts situated within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court. It is therefore evident that the Court of City Magistrate being an inferior Criminal Court to this High Court the High Court has got revisional powers and can exercise its revisional jurisdiction to satisfy itself as to the correctness legality or propriety of any such order. This High Court therefore in exercise of its revisional powers under secs. 435 and 439 of the Criminal Procedure Code can interfere if the orders are found to be illegal improper or incorrect. I order that this appeal being not maintainable should be converted and treated as a Criminal Revision Application. It was contended by the learned Asstt. Government Pleader Mr. Chhaya that even if this appeal is treated as Criminal Revision Application it should not be entertained as it has been filed beyond the period of limitation prescribed viz. a period of three months. There has been a delay of 18 days. The reason assigned by the appellant. who will now be a petitioner is that this order came to his knowledge on 18-1-1967. It will be significant to note that the notice as to why the penalty amount should not be recovered from him was not personally served on him. That fact appears from the impugned order itself. I need not enter into this question regarding the delay as I find that this is a fit case where this Court suo motu should take up this matter in revision and revise the order passed. [the rest of the judgment is not material for the reports] rule made absolute. .