BHIKAM SINGH Vs. STATE

JUDGEMENT

(1.) :-Padam Singh sand Bhikam Singh stood sureties for Smt. Gulabo, who had been tried for a criminal offence. On the date fixed Smt. Gulabo did not appear before the trial court, with the result that the bonds of sureties were forfeited and notices were issued to them to show cause. An application was filed on behalf of Bhikam Singh that Smt. Gulabo had died on 5-1-1980. He was given an opportunity to produce evidence in support of this allegation. 17th June 1980 was fixed for evidence. On that date Bhikam Singh did not appear. It is said that Padam Singh had also died by then. However, the position was that on the failure of the surety to produce evidence in support of the allegation of death of Smt. Gulabo, the instant warrants have been issued by the trial court for the recovery of the bonded amount. It appears that an appeal was filed by Bhikam Singh before the Sessions Judge, Bulandshahar under Sec. 449 CrPC. The Sessions Judge has dismissed the appeal summarily on 24th July 1980 in exercise of his powers under Sec. 384 CrPC. Hence this revision.

(2.) I have heard counsel for the parties and have also perused the impugned orders. The applicant's counsel has submitted that the Sessions Judge had no jurisdiction to dismiss the appeal summarily without calling for the record of the case. Reliance for this purpose is placed upon Sec 384 (2) CrPC (New) which runs to the effect that before dismissing an appeal under this section the Court may call for the record of the case. Learned counsel for the applicant has pointed out that under the old Criminal Procedure Code Sec. 421 (2) corresponded to the present Sec. 384 (2) CrPC. Under Sec. 421 (2) old it was laid down that before dismissing an appeal under this section the court may call for the record of the case, but shall not be bound to do so. The argument is that the expression 'but shall not be bound to do so' has been deleted in the New Code of Criminal Procedure in the equivalent Sec. 384. This argument appears to have great force.

(3.) THIS revision application is accordingly allowed. The order of the Sessions Judge dated 24-7-1980 is hereby set aside and the case is remanded back to the Sessions Judge for deciding the case after perusing the record. The record of the case shall be sent down to the Sessions Judge immediately for the aforesaid purpose. Needless to point out that it shall be open to the Sessions Judge to decide the appeal summarily after giving an opportunity to the accused applicant and after perusing the record. In these circumstances, it is advisable that this case be disposed of by another Sessions Judge. Revision allowed.