JUDGMENT - N.B. NAIK, J.:---By this revision application, the petitioner challenges the order dated 2nd August, 1975 passed by the learned Additional Sessions Judge, Greater Bombay, summarily dismissing his appeal against the order of the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay in Case No. 240/PN/1974, by which the learned Magistrate after forfeiting the surety bond executed by the petitioner, passed an order detaining him in Civil Jail for a period of one year. The Facts giving rise to this revision application are, briefly, these : One Abdul Hamid Isak was prosecuted in Criminal Case No. 1098/P of 1974 for the alleged offence of dishonesty receiving stolen property under section 411 I.P.C. He being released on bail with one surety in the sum of Rs. 2,000/-, the petitioner stood surety for him. The surety bond was executed by the petitioner on 20th December, 1973. On 7th October, 1974, as the accused in the principal case did not attend the Court, the Court issued a notice to the petitioner to produce the accused and Case No. 240/PN/1974 was registered against him. It is the case of the petitioner that he could not do so, as the petitioner was arrested on 9-11-1974 in connection with some other case. On 28th May, 1975 the proceedings No. 240/PN/1974 giving rise to this revision application was taken up. The petitioner being present, the Magistrate passed the order as under : "Surety present. He cannot produce the accused. Bond in the sum of Rs. 2000/- forfeited. Surety cannot pay the amount. He is undergoing imprisonment for similar default in another case. In lieu of payment the surety is ordered to be detained in Civil Jail for a period of one year." 2. The correctness of the said order was challenged by the petitioner by an appeal to the Court of Session, Greater Bombay. But the learned Sessions Judge summarily rejected that appeal by observing that he agreed with the reasoning given by the learned Metropolitan Magistrate in passing the order. 3. The propriety of the said order is challenged by the revision petitioner. Mr. Solshe, the learned Advocate who has appeared in support of this revision application, has assailed the order of the courts below, firstly by pointing out that even if the case were to be covered by the Criminal Procedure Code of 1898. 3. The propriety of the said order is challenged by the revision petitioner. Mr. Solshe, the learned Advocate who has appeared in support of this revision application, has assailed the order of the courts below, firstly by pointing out that even if the case were to be covered by the Criminal Procedure Code of 1898. Since the learned Magistrate has not exhausted the remedy under section 386 of that Code, he could not have passed the order straight away directing the detention of the petitioner in Civil Jail. His second contention is that since in the instant case the proceedings to forefeited the bond commenced on 7-10-1974 by issuing a notice to the surety produce the accused, these proceedings should be governed by the Code of Criminal Procedure, 1973, which does not at all provide for the detention of the surety in the Civil Jail. In my opinion, there is considerable force in the submission of Mr. Solshe. Assuming for a moment that the case were to be governed by the Code or 1898, the provisions of section 514 of that Code, as amended by the Maharashtra Amendment Act, 22 of 1960, are this effect :--- "514(1) Whenever it is proved to the satisfaction of the Court by which a bond under the 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 forefeited 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 as if such penalty were a fine imposed by it under the Code. (3) If such penalty is not paid and cannot be recovered in the manner stated in sub-section (2) the person so bound shall, not withstanding anything contained in the provision to sub-section (3) of section 386, be liable, by order of the Court which ordered the payment of the penalty, to imprisonment in the Civil Jail for a which may extend to one year." 4. The provision of section 386 are to this effect : "386(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways that is to say, it may--- (a) issue a warrant of the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the offender; Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in the writing it considers it necessary to do so. (2) The State Government may make rules regulating the manner in which warrants under sub-section (1), Clause (a) are to be executed and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the courts issue a warrant to the Collector under sub-section (1), Clause (b) such warrant shall be deemed to be a decree, and the Collector to be the decree-holder with the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount would be executed shall, for the purpose of the said Code; be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly ; Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." It would appear that in order that the Court may have recourse to the provisions under section 514(3), as amended by the Maharashtra Amendment Act, 22 of 1960, the Court has to exhaust the remedies under section 386 of Criminal Procedure Code. Since that is not at all done in the instant case, it would appear that even if the case, were governed by the old Code, the order of the Court straight away directing the detention of the petitioner in the Civil Jail is clearly illegal and has got to be set aside. Since that is not at all done in the instant case, it would appear that even if the case, were governed by the old Code, the order of the Court straight away directing the detention of the petitioner in the Civil Jail is clearly illegal and has got to be set aside. Even the learned Public Prosecutor does not dispute that, is the correct position in this case. 5. The next submission of Mr. Solshe raises an important point for consideration. Now, his submission is that since the notice asking the petitioner to produce the accused was dated 7-10-1974 and the proceedings forefeiting the bond were commenced on 28th May, 1975 by giving a specific proceeding number viz. 240/PN/1974, it must be held that these proceedings are governed by the Criminal Procedure Code of 1973 and not by the Code of 1898. Mrs. Shenoy, the learned Public Prosecutor, however, submitted that since the petitioner stood as surety for the accused, who was prosecuted prior to the coming into force of the new Code and executed a bond on 28th December, 1973, which was also prior to the coming into force of the new Code, the proceedings in respect of and after the forfeiture of the bond would be governed by the old code and not by the new Code. I am not impressed by this submission of Mrs. Shenoy. Sub-section (1) of section 484 repeals the Code of Criminal Procedure of 1898. Sub-section (2) reads as under : "484(2) Notwithstanding such repeal-(a) if immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry, or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement (hereinafter deferred to as the old Code) as if this Code had not come into force;" It would appear that what is saved after the repeal is "appeal, application, trial, inquiry or investigation" which were pending immediately before the date on which the new Code came into force. Now, it could not be said that because the petitioner had executed a bail bond prior to the coming into force of the new Code that amounted to "any appeal, application, trial, inquiry or investigation" pending qua the petitioner. So far as the present revision application is concerned, it was only after the notice asking him to produce the accused was issued on 7-10-1974, that it could, be said that an inquiry was pending concerning the bail bond executed by him. For whatever it is worth, it may be noted that the proceedings viz., 240/PN/74 dated 21-4-1974 were commenced against the petitioner on the basis of the bond. It would, therefore, appear that merely because the surety had executed a bond prior to the coming into force of the new Code, it could not be said that the procedure for recovering the amount under the bond should be the one provided by the old Code. Since the steps to enforce the bond were taken for the first time after coming into force of the new Code, it must necessarily follow that the provisions of the new Code would apply to such proceedings and not the proceedings under the old Code, in as much as the proceedings could not be said to be deemed to be pending, as provided in section 484(2) of the new Code. In that view of them matter also, the order of the learned Magistrate cannot be sustained, inasmuch as section 446(1) of the new Code, which deal with the procedure to be followed, when a bond has been forefeited, does not provide for the detention of the surety in the Civil Jail; an don the other hand, the steps have got to be taken, as provided under section 441 of the new Code. Judged from any point of view, therefore, it would appear that the order of the learned Magistrate directing the detention of the petitioner surety in the Civil Jail straightaway has got to be set aside. 6. Mr. Solshe has also submitted that since the petitioner has been detained in the Civil Jail under an unlawful order for almost a month i.e. from 6th July, 1975, the Court may take that fact into consideration and in its discreation remit the portion of the penalty and enforce payment of only a part of it. 6. Mr. Solshe has also submitted that since the petitioner has been detained in the Civil Jail under an unlawful order for almost a month i.e. from 6th July, 1975, the Court may take that fact into consideration and in its discreation remit the portion of the penalty and enforce payment of only a part of it. These provisions exist both under the new Code i.e. under section 446 sub-clause (3) and under sub-section (5) of section 514 of the old Code. At any rate, since I have taken the view that the case is governed by the new Code, and if I am right, the detention of the accused, for nearly a month under the orders of the Court, is no illegal detention. I, think that this is a fit case, where this Court should exercise its discretion to remit the amount of penalty by 50 per cent. 7. In the result, the revision application is allowed, the order of detention in the Civil jail is set aside; the matter is remanded to the Magistrate to recover 50 per cent of the original bail amount, as directed by this judgment; and the petitioner should be set at liberty forthwith. Rule absolute. -----