ABDUL LATIF Vs. STATE OF U P

JUDGEMENT

(1.) :-This is an appeal under section 449 (ii) CrPC. One Kallu son of Usman of village Madarpur, police station Maudaha, district Hamirpur was an accused in Sessions Trial No. 34 of 1973 under sections 395/34 IPC. The trial was pending before the II Additional Sessions Judge. Kallu appeared before the said court on 18-11-1974. He did not appear on 6-1-1975. Consequently his bail bonds were forfeited. Notice was issued to the appellants to show cause why the penalty amount be not realized from them. On 2-4-1975 the appellants appeared and alleged that they produced Kallu before the Chief Judicial Magistrate Hamirpur. Between 6-1-1975 and 2-4-1975 non-bailable warrants were issued on two dates, that is, 17-1-1975 and 26-2-1975. These warrants were received back unserved. It means that Kallu was absconding. Kallu was involved in another crime no. 45 relating to a murder. The Chief Judicial Magistrate issued warrant for his arrest. Thereupon he surrendered before the Cheif Judicial Magistrate. In these circumstances the II] Additional Sessions Judge passed the order for the realization of the full penalty amount.

(2.) THE record of the court below has weeded out. It could not be reconstructed.

(3.) THE above contentions are dealt with one by one. (1) Kallu was involved in a dacoity case punishable under section 395 IPC. He was committed to the court of Sessions in the year 1973. He did not appear on 6-1-1975 before the II Additional Sessions Judge to whom the case was transferred by the Sessions Judge for disposal. It is, therefore, obvious that the provisions of the old Code of Criminal Procedure will apply. Offence under section 395 IPC was exclusively triable by court of Session under the old Code. THE Magistrate could only hold inquiry in accordance with Chapter XVIII of the said Code. THE copy of the order appealed against does not indicate the date on which Kallu was ordered to be released. THEre is also no mention of the date on which the appellants furnished bail bonds. For the purpose of this appeal, it is, however, assumed that the accused was ordered to be released by the Sessions Court before the commitment of the case by the Magistrate to the court of Session. In such an event the committing magistrate will accept the bail bonds and the bonds will be for appearance not only before the Magistrate but also before the court of Sessions. THE learned counsel for the appellants has placed reliance on the case of Lakhan Singh v. State, 1968 AWR (H. C.) 800. In this case the surety bonds indicated that the sureties undertook ta produce the accused on every date of hearing before the Judicial Officer Dataganj or the court to which the case be transferred or before a court of Sessions. Taking into consideration the language of section 514 CrPC it was held that the Magistrate only could order for the forfeiture of the bonds and not the court of Sessions because the bonds were taken by him. On the other side the learned State counsel has referred to two cases decided subsequently. THE first one is the case of Bharosi Lal v. State, 1970 AWR (H. C.) 327 decided by the Honourable Judge who decided the case of Lakhan. Singh (supra). In this case the Food Inspector had released the accused on taking surety bonds. THE bonds were for appearance before the Magistrate. THE accused did not appear before the Magistrate THE Magistrate forfeited the bonds It was held that the Magistrate! had rightlyforfeitedthebonds.lt was observed that the first Fart of section 514 CrPC related to any bond taken by the court and the second part related to a [bond for the appearance of the accused before a court and that any person could (take bonds under the second part. THE other case is of Pratap Narain v. State of U. P., 1972 CrLJ 950. In this case the accused was wanted in a murder case. Pratap Narain and another stood sureties for him in pursuance of (he order of bail granted by the Sessions Judge. THE accused did not appear in the court of Sessions. THE Sessions Judge forfeited the bonds. It was held that the Sessions Judge was competent to forfeit the bonds. THE relevant observation runs as follows :