Research › Browse › Judgment

Patna High Court · body

1972 DIGILAW 254 (PAT)

BANMALI ROY v. SREONARAIN SAO

1972-12-31

B.D.SINGH

body1972
JUDGMENT : B.D. Singh, J. This application under Sections 435 and 439 of the Code of Criminal Procedure (here-in-after referred to as 'the Code') by the sole petitioner, Banmali Roy, is directed against the JUDGMENT : dated the 22nd August, 1969, passed by the Sessions Judge, setting aside the ORDER :dated the 21st January. 1969 passed by the Magistrate under Section 117(3) of the Code forfeiting the interim bonds executed by the six opposite party in a proceeding under Section 107 of the Code. 2. In ORDER :to appreciate the point involved in this case it will be necessary to state briefly the facts. On a report of the Barh Police the Sub-divisional Magistrate drew up a proceeding under Section 107 against the opposite parties asking them to show cause why they should not be bound down for a sum of Rs. 1000/- each with two sureties of the like amount for keeping peace for a period of one year. In the proceeding petitioner Banmali Roy was the member of the first party while the opposite parties were members of the second party. The opposite parties appeared and showed cause. Opposite parties 2 and 3 are sons of opposite party no. 1. On the report of the Police the Sub-divisional Magistrate, Barh asked the opposite party nos. 1 and 2 to show cause why they should not be asked to execute interim bonds under Section 117 (3) of the Code for a sum of Rs. 1000/- with two sureties of the like amount for keeping peace during the pendency of the enquiry. They appeared and showed cause and the Magistrate, to whom the proceeding was transferred for disposal, on bearing the parties, asked opposite parties 1 and 2 to execute interim bonds, as indicated above. They preferred a revision but it was rejected on 5.6.67. Subsequently, the other four opposite parties were also asked to execute interim bonds of Rs. 1000/- each with two sureties of the like amount for keeping peace during the pendency of the enquiry, which they executed. 3. On the 15th April, 1968, the petitioner filed a petition stating therein that in spite of the interim bonds the opposite parties had committed a number of overt acts and they had violated the terms and conditions of the bonds. The petitioner's application was sent to the Inspector of Police, Barb, for enquiry and report. 3. On the 15th April, 1968, the petitioner filed a petition stating therein that in spite of the interim bonds the opposite parties had committed a number of overt acts and they had violated the terms and conditions of the bonds. The petitioner's application was sent to the Inspector of Police, Barb, for enquiry and report. He made enquiry and submitted a report dated the 28th April, 1968. On behalf of the petitioner Naresh Kumar Singh and Bishwanath Singh filed affidavits stating therein that the opposite parties had committed a number of overt acts, after execution of the interim bonds. Shri R. N. Maharaj, Magistrate, before whom the proceeding was subsequently transferred, heard the parties and came to the conclusion that the opposite parties had committed a number of overt acts after execution of the interim bonds and they had also violated the terms and conditions of the said bonds. He, therefore, forfeited their bonds and directed the opposite parties to pay the penalty. The relevant portion of his ORDER :reads as : "Hence I ORDER :that the interim bonds executed by all the six members of the opposite party bas been forfeited and I call upon the opposite party and their sureties to pay the penalty thereof by 30.1.69 and in case of their fai1ure to pay the penalty action will be taken to realise the penalties through process of the court according to the law........" 4. Against the said ORDER :the opposite parties perferred an appeal, which was put up for consideration before Mr. S.N. Benerjee, Sessions Judge who allowed appeal and set aside the ORDER :of the Magistrate dated the 21st January, 1969. chiefly on the ground that the Magistrate, while passing the ORDER :, held not complied with the mandatory provision contained under Section 514 of the Code. 5. Learned counsel appearing on behalf of the petitioner has assailed the JUDGMENT : and has raised the following points for consideration by this court. chiefly on the ground that the Magistrate, while passing the ORDER :, held not complied with the mandatory provision contained under Section 514 of the Code. 5. Learned counsel appearing on behalf of the petitioner has assailed the JUDGMENT : and has raised the following points for consideration by this court. (i) The learned Sessions Judge has erred in entertaining the appeal bled by the opposite parties; (ii) He also erred in holding that the provision for second notice under Section 514 of the Code was mandatory, non-compliance of which vitiated the ORDER :of the Magistrate; and (iii) He erred in observing that since no overt act was committed between the period of initiation of the proceeding for forfeiture and the date of the ORDER :of the Magistrate, that is, the 21st January. 1969. 6. I will take up for consideration point no (ii) first. The relevant portion of the ORDER :is to be found in paragraph 5 of the JUDGMENT : where the learned Sessions Judge held that Section 514 of the Code indicates that two steps are to be taken first it must be proved to the satisfaction of the court that the bond bas been forfeited whereupon the court has to record the grounds of such proof; and secondly, the court being so satisfied may can upon the person bound down to pay penalty or to show cause why it should not be paid, The ORDER :of the Magistrate suffered from the said defect. Hence the learned Sessions Judge held the ORDER :of the Magistrate as illegal. Learned counsel for the petitioner bas assailed this part of the JUDGMENT : and has referred to the provisions contained in Section 514 of the Code. According to him notice on both the stages to show cause is not mandatory. In this connection he referred to a Bench decision of this Court in (1) Tarni Yadav V. The State (A.I.R. 1962 Patna 431) where Kamla Sahai and Anant Singh. JJ., while dealing with the provisions contained in Section 514 of the Code, observed that there is nothing in Sub-section (1) which requires the court to give notice to the executant of the bond for appearance of an accused person to show cause against forfeiture before recoding an ORDER :that the bond has been forfeited. According to their Lordships notice to the sureties before forfeiture was not (Sic) necessary. According to their Lordships notice to the sureties before forfeiture was not (Sic) necessary. In my opinion, the above observations of their Lordships do not lend support to the contention of the learned counsel for the petitioner on the facts and circumstances of the instant case. On the contrary, it goes against his contention. It may be seen that their Lordships have also observed that Sub-sections (1) and (2) of Section 514 contemplate two stages. Besides, their Lordships were not dealing with the notice to the person executing the bond but they were dealing with the notice to the sureties. In the present case, it has been conceded on behalf of the petitioner that no notice was served on the sureties. If that is so on that ground alone the ORDER :passed by the Magistrate cannot be sustained by this court. Reference may be made to (2) Ghulam Mehdi V. State of Rajasthan (A.I.R. 1960 Supreme Court 1185) where their Lordships held that Section 514 of the Code shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the court proceed to recover the money. When no opportunity has been given to a surety to show cause why he should not be made to pay the proceedings cannot be said to be in accordance with law and should therefore be quashed. Therefore, in my opinion, the constention of the learned counsel under point no. (ii) fails. 7. Now I turn to consider point no. (i). In this connection he drew my attention to the provision of Section 515 of the Code, which reads as : “All ORDER :s passed under Section 514 by any Magistrate other than a Presidency Magistrate or District Magistrate shall be appealable to the District Magistrate, or, if not so appealed, may be revised by him." On the basis of the above provision learned counsel for the petitioner urged that the appeal could have been filed only to the District Magistrate and not to the Sessions Judge, as has been done in the instant case. In ORDER :to substantiate his contention he relied on (3) Kaluram V. Madhya Bharat State (A.I.R. 1951 Madhya Bharat 67) where Dixit, J., while dealing with the provision contained in Section 515 of the Code, observed that it is plain from Sections 36 and 515 that an appeal would lie to the District Magistrate from an ORDER :passed under Section 514 by any Magistrate other than a District Magistrate, unless there is some provision in the Code or the Adaptation Ordinance empowering the Government to deprive the District Magistrate of the statutory ordinary powers given to him by Section 36 and other Sections of the Code and unless the Government has in valid exercise of such a power abrogated the power of the District Magistrate to hear an appeal under Section 515 of the Code. There is no such provision either in the Code or in Ordinance XXXI (31) of 1948. According to his Lordship the power given to a Magistrate by the Code itself under Section 36 cannot be taken away by the use of Section 41. His Lordship further observed that the mere fact that Government has appointed a First Class Magistrate to be an Additional District Magistrate having all the powers of a District Magistrate, cannot abrogate the powers which the Code itself vests in a District Magistrate. The term 'District Magistrate' in Section 515 does not include an Additional District Magistrate and an appeal under that section can be heard only by a District Magistrate. His Lordship also considered the Notification No. 8 of 19.1.1949 and the subsequent Notification of 12.3.1949, in so far as they purport to take away and restrict the power which the Code itself vests in a District Magistrate, and held them ultra vires and invalid. Learned counsel also referred to (4) Vallabhadas Dhuryaji V. State of Madhya Bharat (A.I.R. 1955 NUC 2096) where Mehta and Samvatsar, JJ., observed that it was true that only the District Magistrate alone could entertain appeal under Section 515. But there was nothing to prevent the Additional District Magistrate on whom the powers were conferred under Section 10(2) from hearing an appeal under Section 515 when such appeal was transferred to him by the District Magistrate. 8. But there was nothing to prevent the Additional District Magistrate on whom the powers were conferred under Section 10(2) from hearing an appeal under Section 515 when such appeal was transferred to him by the District Magistrate. 8. On the other hand, learned counsel appearing on behalf of the opposite parties, drew my attention to paragraph 1 of the JUDGMENT : reported in (1) AI.R. 1962 Patna 431 (Supra) in ORDER :to show that in that case also against the ORDER :of the Magistrate, appeal was filed before the Sessions Judge. If the appeal was not maintainable before the Sessions Judge, their Lordships would have said so in their JUDGMENT :. That apart, in the present case this point was not raised before the Sessions Judge. Therefore, the petitioner should not be allowed to agitate this point before this court. 9. In my view, the contention of the learned counsel for the opposite party is correct. Besides, even on merit petitioner would not succeed on this point, in view of the Notification dated the 29th November, 1968, of the State of Bihar, published in the Extraordinary Gazette, whereby the power has been conferred on Mr. S. N. Banerjee, learned Sessions Judge, who has disposed of the appeal in this case, under Section 515 of the Code to hear the appeal. In view of the said Notification and the JUDGMENT : in (1) A.I.R. 1962 Patna 431 (Supra) I am unable to place reliance on the two decisions reported in (3) A.I.R. 1951 Madhya Bharat 61 (Supra and (4) A.I.R. 1955 N.U.C. 2096 of Madhya Bharat (Supra) The contention of learned counsel under point no (i) has also no merit. 10. Now I turn to consider the last point (no. iii). Learned counsel for the petitioner urged that between the period of initiation of the proceeding for forfeiture and the date of the ORDER :of the Magistrate that is, the 21st January, 1969, there was no question of any overt act, as the opposite parties were prohibited. From that the learned Sessions judge should not have presumed that there was no overt act committed by the opposite parties. In my JUDGMENT :, this relates to appreciation of evidence, which can hardly be interfered with by this court under revisional jurisdiction. Hence, I am not inclined to interfere with the JUDGMENT : of the learned Sessions Judge on this account either. 11. In my JUDGMENT :, this relates to appreciation of evidence, which can hardly be interfered with by this court under revisional jurisdiction. Hence, I am not inclined to interfere with the JUDGMENT : of the learned Sessions Judge on this account either. 11. In the result, the JUDGMENT : of the learned Sessions Judge is upheld and the application is dismissed. Application dismissed