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Allahabad High Court · body

1970 DIGILAW 82 (ALL)

Bharosi Lal v. State

1970-02-23

D.D.SETH

body1970
ORDER D.D. Seth, J. - The facts of this case are that one Gajraj was prosecuted for an offence under the Prevention of Food Adulteration Act. The Applicant Bharosi Lal stood surety for producing the accused before the Magistrate. The surety bond was executed by the Applicant before the Food Inspector, Agra. Girraj accused, however, absconded. The learned Magistrate issued notice to the Applicant to show cause as to why the entire amount of the penalty be not realised from him. The Applicant failed to show cause and hence, on 20-10-1967, the learned Magistrate ordered the entire amount of Rs. 1,000/- as penalty to be realised from the Applicant. Against the order of the learned Magistrate the Applicant preferred an appeal which was dismissed by the learned Sessions Judge, Agra. Aggrieved by the orders passed by the courts below the Applicant has come up in revision to this Court. 2. I have heard Sri G.C. Dwivedi, learned Counsel appearing for the Applicant and Sri K.S. Sinha, the learned brief holder, for the State. The learned Counsel for the Applicant contended that the bond in the instant case was not executed under the provisions of the Code of Criminal Procedure and hence the orders passed by the courts below have to be set aside. There is no force in this contention. Section 10 of the Prevention of Food Adulteration Act deals with powers of Food Inspectors and the second proviso to Sub-section (5) of Section 10 is relevant in this connection and reads as follows: Provided further that the food inspector shall in exercising the powers of entry upon and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) relating to the search or inspection of place by a police officer executing a search warrant issued under the Code. Sub-section (8) of Section 10 of the Prevention of Food Adulteration Act reads thus: any food inspector may exercise the powers of a police officer u/s 57 of the Code of Criminal Procedure, 1898, (Act V of 1898; for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized. Section 57 of the Code of Criminal Procedure deals with the refusal to give name and residence by the accused and reads as follows: (1) When, any person who in the presence of a police officer has committed or has been accused of committing a non cognizable offence refuses, on demand of such officer, to give his name or residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required.... 3. It follows, therefore, that the Food Inspector exercising the powers of a police officer could release the accused, Girraj, on the execution of a surety bond by the Applicant under the provisions of the Code of Criminal Procedure for the production of the accused before the learned Magistrate and when the Applicant failed to produce the accused before the learned Magistrate, the learned Magistrate rightly ordered the forfeiture of the bond Under Sub-section (1) of Section 514, Code of Criminal Procedure. 4. The learned Counsel for the Applicant placed reliance on a decision of the Supreme Court in Rameshwar Bhartia Vs. The State of Assam, AIR 1952 SC 405 , in which it was held as follows: Under Section 514, Code of Criminal Procedure, action can be taken only when the bond is taken by the court under the provisions of the code such as Section 91 for appearance, the several security sections or those relating to bail. Where the security bond is taken from the accused not by the Court but by a particular official such as a procurement Inspector for production of the property before the Court, no action can be taken u/s 514 for forfeiture of the bond. 5. In Rameshwar Bhartia's case the only thing that the Supreme Court decided was that when the bond was for the production of property, action u/s 514, Code of Criminal Procedure, could be taken only when the bond was taken by the Court. 5. In Rameshwar Bhartia's case the only thing that the Supreme Court decided was that when the bond was for the production of property, action u/s 514, Code of Criminal Procedure, could be taken only when the bond was taken by the Court. In that case the Supreme Court did not lay down that if the bond for the appearance of the accused was taken by a police officer (Food Inspector) u/s 486 of the Code of Criminal Procedure, the bond could not be forfeited u/s 514, Code of Criminal Procedure. 6. The relevant portion of Section 514, Code of Criminal Procedure, is as follows: (1) When 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. ............ 7. The first part of Section 514, Code of Criminal Procedure, relates to any bond taken by the Court and the second part relates to a bond for the appearance of the accused before a Court. In the instant case the bond had been executed by the Applicant for producing Girraj before the Magistrate and under these circumstances it was not necessary that the bond should have been taken by the Magistrate himself u/s 57, Code of Criminal Procedure. Rameshwar Bhartia's case decided by the Supreme Court is, therefore, distinguishable inasmuch as in that case the bond had been executed for the production of some property, while in the instant case the bond had been executed by the Applicant for the production of the accused before the Magistrate and when the Applicant failed to produce the accused before the Magistrate, the Magistrate rightly ordered for the forfeiture of the amount of the bond. It was not necessary that the bond should have been executed before the court itself. This opinion is fortified by a decision of a Division Bench of the Calcutta High Court in Sailesh Chandra Chakraborty Vs. The State, AIR 1963 Cal 309 with which I respectfully agree. It was not necessary that the bond should have been executed before the court itself. This opinion is fortified by a decision of a Division Bench of the Calcutta High Court in Sailesh Chandra Chakraborty Vs. The State, AIR 1963 Cal 309 with which I respectfully agree. There is thus no force in the submission made by the learned Counsel for the Applicant. 8. Sri G.C. Dwivedi relying upon certain observations in Sailesh Chandra Chakraborty's case (supra) of the Calcutta High Court contended that the bond should have been executed in accordance with Section 499, Code of Criminal Procedure, which requires that except when the accused is a minor the bail bond should be executed both by the accused and by the surety. A bond executed by the surety alone, according to the learned Counsel, was not a bond within the terms of Code of Criminal Procedure and therefore, it cannot be legally enforced. I find no force in this contention. No such plea was raised be, fore the appellate Court. This is a question of fact which cannot be raised at the stage of revision. 9. Sri G.C. Dwivedi then placed reliance on a decision of Madhya Pradesh High Court In Re: Prabhu Dayal Khubchand and Another, AIR 1960 MP 85 in which it was held that if a bond is taken by the police and not by the court under the Code of Criminal Procedure, such a bond cannot be forfeited by the court. I am afraid I cannot agree to the observations of the learned single Judge of Madhya Pradesh High Court. 10. Learned Counsel for the Applicant further contended that the bond is not on the record and hence the orders of the courts below cannot be sustained. There is no force in this contention. The learned Counsel does not deny that the Applicant did stand surety for producing Girraj before the Magistrate. In the circumstances whether the bond is on record or not is immaterial. 11. In the end the learned Counsel for the Applicant urged that the amount of penalty may be reduced. I see no force in this contention also. The accused could not be produced before the Magistrate by the Applicant. There is, therefore, no ground for remitting the entire or any portion of the penalty. 12. The revision is, therefore, dismissed. The stay order is vacated. I see no force in this contention also. The accused could not be produced before the Magistrate by the Applicant. There is, therefore, no ground for remitting the entire or any portion of the penalty. 12. The revision is, therefore, dismissed. The stay order is vacated. The Applicant shall be required to deposit the penalty of Rs. 1,000/-.