Rajesh Kumar vs Nanak Chand

Dr. Sarojnei Saksena, J.

By this order Crl. Revision No. 924 of 1996 and Crl. Misc. No. 22020M of 1996 are being decided as they arise out of the same set of facts.

The backdrop of the case is that Nanak Chand, Harkrishan Lal, Mangat Ram and Wasawa Ram respondents and the petitioner Rajesh Kumar were bound down in proceedings under section 107/151 of the Code of Criminal Procedure (in short, the Code) under section 116(3) of the said Code vide order dated December 30, 1993, passed by the SubDivisional Magistrate, Fazilka, for a period of six months, in the sum of Rs. 5,000/ each to maintain peace. Respondents Nanak Chand and Harkrishan Lal were parties in the said criminal case, while Mangat Ram and Wasawa Ram stood surety for these respondents. Thus, these respondents and the petitioner furnished their personal/surety bonds.

The petitioner alleged that thereafter respondents 1 and 2 caused multiple injuries to the petitioner and his wife on May 21, 1994. On June 7, 1994, the petitioner submitted an application before the SubDivisional Magistrate for initiating proceedings against respondents 1 to 4 for violating the terms of personal/surety bonds furnished by them. The petition was supported by medical reports of the injuries sustained by the petitioner and his wife. Vide his order dated July 10, 1995 (Annexure P.1) the learned SubDivisional Magistrate held that on being noticed applicantRajesh Kumar and respondents Nanak Chand, Harkrishan Lal, Mangat Ram and Wasawa Ram could not give any defence for committing the violation of the bonds submitted by them and thus he held them guilty under section 446 of the Code. Thereafter he ordered that show cause notice be issued to them to deposit the amount equivalent to furnished security bond on August 21, 1995, as penalty or to furnish evidence for not depositing the same.

Aggrieved by this order the respondents filed Criminal Appeal No. 25 of 1995 in the Court of Shri Amar Nath Jindal, Additional Sessions Judge, Ferozepur. Vide his order dated July 17, 1995, respondents'' appeal was allowed. The learned Additional Sessions Judge held that the trial Court had not followed the procedure to decide the application under Section 446 of the Code by not affording opportunity to the parties to lead evidence in support of their case. He also observed that so far the appellants had not been held guilty of the fact that they had breached peace during the period of personal/surety bonds furnished by them. On the basis of these findings, he held :

"...Therefore, I accept the appeal and set aside the impugned order. However, it is made clear that if the appellants are later on held guilty of breaching peace during the period of the personal bonds and surety bonds furnished by them, then State will be at liberty to initiate the proceedings against the appellants afresh."

The petitioner filed Criminal Revision No. 28 of 1995 against the said order of the SubDivisional Magistrate, Fazilka, which was also decided by Shri Amar Nath Jindal, Additional Sessions Judge, Ferozepur, on the same day i.e. July 17, 1996, on which he decided the aforementioned Criminal Appeal No. 25 of 1995. While disposing of this revision he observed that the order passed under section 446 of the Code is appealable under Section 449 of the Code. There is no law that the appeal can be treated as a revision. He also observed that the appeal against the impugned order dated July 10, 1995, could have been filed within 30 days, but the petitioner applied for obtaining the copy of the order dated 21.8.1995 i.e. after the expiry of 30 days. Thus, the appeal is clearly barred as the same has been filed on 31.8.1995. He also observed that no application for condonation of delay has been filed by the counsel for the petitioner. After making all these observations, in the end he recorded his conclusion in the following words :

"In these circumstances, I am of the considered opinion that the revision petition is hereby dismissed being not maintainable."

The petitioner is assailing both these orders. Against the order passed by the Additional Sessions Judge, Ferozepur, in Criminal Revision No. 28 of 1995, the petitioner has filed Crl. Misc. No. 22020M of 1996, and against the order passed in Criminal Appeal No.25 of 1995 the petitioner has filed this Crl. Revision No. 924 of 1996.

The respondents'' learned counsel raised a preliminary issue that since the petitioner''s revision has already been dismissed by the Additional Sessions Judge, Ferozepur, this second revision is not maintainable even under Section 482 of the Code. To substantiate this plea he has relied on Deepti @ Arati Ram v. Akhil Rai and others, 1995(3) Recent CR 638 .

To repell this contention the petitioner''s learned counsel has relied on a recent decision of the Apex Court in Krishnan v. Krishnaveni and another, 1997(1) Recent CR 724 .

Petitioner''s learned counsel''s reference to Krishnan''s judgment is apposite. In this judgment the Apex Court has held that though revision before the High Court under section 397(1) of the Code is prohibited under Section 397(3), inherent power of the High Court is still available under section 401 of the Code and continuous supervisory jurisdiction under section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Court or the required statutory provision has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inspection lest grave miscarriage of justice would ensue.

In this case, it is apparent from the orders passed by the learned Sub Divisional Magistrate, Fazilka, as well as of Additional Sessions Judge, Ferozepur, that both the Courts below have passed the impugned orders, which cannot be sustained in the eyes of law.

Admittedly, the petitioner as well as respondents Nanak Chand and Harkrishan Lal were challaned under sections 107/151 of the Code and they were ordered to submit personal bonds and bail bonds in the sum of Rs. 5,000/ each to maintain peace during a period of six months. This order was passed on December 30, 1993. Both the parties submitted their bonds in pursuance of the said order. Respondents Mangat Ram and Wasawa Ram stood surety for respondents Nanak Chand and Harkrishan Lal. On May 21, 1994, as the petitioner alleged, respondents Nanak Chand and Harkrishan Lal caused injuries to him as well as to his wife. On the basis of this incident another challan was filed by the police against both the parties under section 107/151 of the Code. The petitioner also submitted an application supported by medical reports of his as well as his wife''s injuries praying that since the respondents have committed breach of peace in violation of the terms of their bonds, their bonds be forfeited. The respondents were given notice of this application. They filed their reply, alleging that the petitioner''s application is motivated by enmity and has no locus standi to file such a petition. They also denied that they have caused injuries to the petitioner or to his wife. These respondents also averred that the petitioner has also violated the said order of the Court dated December 30, 1993, as he also furnished security to maintain peace in the amount of Rs. 5,000/ for six months.

After receiving this reply, the learned SubDivisional Magistrate heard counsel for both the parties. The learned SubDivisional Magistrate arrived at a conclusion that in pursuance of order dated December 30, 1993, respondents Nanak Chand and Harkrishan Lal have furnished bonds in the sum of Rs. 5,000/ to maintain peace for six months. In Kalendra filed under sections 107/151 of the Code, Mangat Ram and Wasawa Ram stood surety for them for this period. Thereafter he has held :

"...Despite this, Harkrishan Lal and Nanak Chand again indulged in violence with the family of the petitioner and as such they were again arrested under section 107/151 Cr.P.C. Rajesh Kumar, applicant had also submitted personal bond and surety bond to maintain peace earlier and on dispute having arisen he furnished sureties again. It is clear that both the parties have violated the order. The parties could not give any defence for committing this violation and as such the applicant Rajesh Kumar and respondents Nanak Chand, Harkrishan Lal, Mangat Ram and Wasawa Ram are held guilty under section 446 Cr.P.C. and the personal bonds and surety bonds to keep peace furnished by them are forfeited in favour of the State. They should be issued show cause notices to deposit an amount equivalent to furnished surety bonds dated 21.8.1995 as penalty or to furnish evidence for not depositing the same."

Section 446(1) of the Code provides as under:

"... ... ... ... ... or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the 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."

Thus, it is evident that under section 446(1) of the Code when such a bond is alleged to have been forfeited, the Court is required to record evidence and to arrive at a conclusion that it is proved to his satisfaction that the parties have forfeited their bond and thereafter he is required to record the grounds of such proof and may call upon any person bound by such bond to pay penalty thereof or to show cause why it should not be paid.

From the impugned order passed by the SubDivisional Magistrate, Fazilka, on July 10, 1995, it is evident that he has followed the later provision of the section but has not followed the earlier part of this mandatory provision. No doubt, in his order dated July 10, 1995 he has observed that parties could not give any defence for committing this violation, but there is no mention in the whole of the order whether an opportunity was given to the parties to lead evidence to prove that they have or they have not committed any breach of the terms of the bond given by them earlier in pursuance of the order dated December 30, 1993. From his observation made in last but one para of the order it is evident that after giving notice to both the parties, he simply heard arguments of both the counsel.

In Thakur Kishan Narayan Singh and others v. The King Emperor, AIR 1922 Patna 242, Rose, J. held that section 514 of the Code lays down that it must be proved to the satisfaction of the Court that the bond has been forfeited and the Court shall record the grounds of such proof, and it is after such grounds have been recorded that the person bound by the bond may be called on to show cause why the amount should not be paid. Where there has been a failure to carry out the express provisions of the law and the Deputy Magistrate acted without jurisdiction in failing to record proof before he issued notice to show cause, and on this ground the petitioners are entitled to have proceedings set aside. This judgment was referred to by Fazl Ali, J. (as he then was) in Zulmi Kahar v. Emperor, AIR 1929 Patna 643, wherein he held :

"The proper course for a Magistrate proceeding to pass order under Section 514(1) is to come to a finding based on some evidence that the bailbond executed by the surety has been duly forfeited and then only to issue a notice to show cause why the penalty should not be realized from him."

In Bubai Manjhi and others v. The State, AIR 1958 Patna 286, the words "whenever it is proved" and "Satisfaction of Magistrate" are interpreted and it is held that the use of the words "whenever it is proved" in section 514 makes it incumbent on the Magistrate to take evidence in order to afford a foundation for his jurisdiction to call on the party to show cause and to declare recognizance forfeited. Taking and recording of evidence are essential and when it had not been done, there is a failure of jurisdiction. There must be proof of the satisfaction of the Court that the bond had been forfeited and further the court shall record the grounds of such proof.

In Ganpatlal Sharma v. State, AIR 1960 Patna 325, bond under section 107 of the Code for keeping peace was submitted by the petitioner. The question was whether he had forfeited the bond. A Single Judge of Patna High Court held :

"Subsection (1) of S. 514 makes two points clear: Firstly, the court must be satisfied that a bail bond has been forfeited and secondly, this satisfaction must be based upon some proof. Where the bond is not for appearance of a person in Court (in which case the mere fact of absence of that person may well be a sufficient ground for Magistrate''s satisfaction) but for keeping the peace, the Magistrate cannot act unless he is satisfied on proof furnished before him that a breach of the terms of the bond has been committed. The mere fact that the police have reported that a breach of the bond has been committed, or the mere fact that a prima facie case has been made out before someone else that there has been such a breach is not sufficient for him to take action under Section 514(1)."

In this case also, though police submitted a second Kalendra under sections 107/151 of the Code against both the parties alleging that both the parties have committed breach of their bonds submitted earlier in pursuance of the order dated December 30, 1993, and the petitioner also submitted an application that since respondents Nanak Chand and Harkrishan Lal have inflicted injuries on him and on his wife, they have forfeited their bonds/surety bonds; therefore, they should be ordered to pay the amount of penalty. No doubt, he appended the medical reports of his as well as of his wife''s injuries, but it is apparent from the lower Court''s order as well as from the appellate Court''s order that no opportunity was given to the parties to prove their allegations. Thus, in my considered view, the learned Sub Divisional Magistrate, Fazilka, had no jurisdiction to pass an order under section 446(1) of the Code.

On this premise, since the order dated July 10, 1995, was passed by the SubDivisional Magistrate, Fazilka, without any jurisdiction, it is liable to be set aside as it is non est in the eyes of law.

The appellate/revisional Court also fell into an error. No doubt he observed that no opportunity for adducing evidence was given to the parties before the impugned order was passed and it was not proved that the appellants have committed breach of any condition of their personal/surety bonds furnished by them, and on the basis of these findings he held that the Sub Divisional Magistrate has failed to follow the provisions of section 446 of the Code while passing the impugned order, forfeiting the surety/personal bonds. On the basis of these findings, he accepted the appeal and set aside the impugned order on July 17, 1996.

On this very date, he also decided petitioner''s Criminal Revision. From the last para of his order it is evident that he was a bit confused whether he is deciding the appeal or revision filed by the petitioner. He held that the appeal is timebarred and observed that there is no provision to treat the appeal as revision. He also observed that the order passed under section 446 of the Code is appealable under section 449 of the Code. He dismissed the revision as not maintainable. When by allowing respondents Criminal Appeal No. 25 of 1995 he had already set aside the impugned order passed by the Sub Divisional Magistrate, Fazilka, on July 10, 1995, this revision ought to have been disposed of along with the appeal itself and the same order should have been passed therein also, but he dismissed the revision.

It is apparent that the Additional Sessions Judge, Ferozepur, has fallen into an error in dismissing the revision. He has rightly allowed respondents'' appeal but has wrongly set aside the impugned order. Instead of passing that order, he ought to have remitted the case to the SubDivisional Magistrate for first of all giving an opportunity to the parties to lead evidence in support of the allegation whether they or any one of them has committed breach of the conditions of personal/surety bonds, to record the grounds of his satisfaction and thereafter to proceed in accordance with section 446(1) of the Code. In view of this flaw, even the order passed by the Additional Sessions Judge, Ferozepur, while allowing Criminal Appeal No. 25 of 1995 is not in accordance with law.

Accordingly, Crl. Misc. No. 12020M of 1996 and the Criminal Revision are hereby disposed of with the direction that all the three impugned orders are hereby set aside, the case is remanded to the SubDivisional Magistrate, Fazilka, to give an opportunity to both the parties to adduce evidence on the point whether they or any one of them have committed breach of the conditions of their personal/surety bonds submitted by them on December 30, 1993, and then to proceed in accordance with the procedure laid down in section 446(1) of the Code.

The parties are directed to appear before the SubDivisional Magistrate, Fazilka, on July 28, 1997.

Revisions allowed.