RANCHOR Vs. STATE

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Farrukhabad recommending that that order dated the 10th September 1954 passed by a first class magistrate of that district directing the applicants to be sent to civil prison for 6 months for non-payment of the amount of the forfeited bonds, be set aside and the learned Magistrate should be directed to proceed according to law in realising the amount of the bonds.

(2.) It appears that he applicants Ranchhor and Babu Ram were sureties for one Ram Lal accused. Ram Lal absconded after he release on bail and the surety bonds of the applicants were forfeited. The applicants were asked to pay the amount of the bonds or to show cause against it. They were unable to satisfy the court why they should not pay the amount of the forfeited bonds. The learned Magistrate ordered for the realisation of the amount of the surety bonds from them. They filed an appeal against this order before the learned Sessions Judge which was dismissed. Thereafter the learned Magistrate instead of proceeding as provided Under Section 514(2) Code of Criminal Procedure issued warrants of arrest against the applicants and ordered that they should be detailed in the civil prison for 6 months. The learned Sessions Judge is of the opinion that the learned Magistrate was not competent to proceed against the person of the applicants unless the had failed to realise the penalty from the attachment and sale of the movable property belonging to the applicants. According to Sub-rule (4) of Section 514 Code of Criminal Procedure he penalty could be recovered from the person of the sureties only if it could not have been recovered by the attachment and sale of their moveable property. It appears from the explanation of the learned Magistrate himself that the property of the applicants had been attached but it was not sold for the realisation of the penalty. He says in the explanation that by an oversight the attachment papers were not looked into and an order was sent to the Tahsildar to get a list of the movable property of the applicants, and when the Tahsildar reported that the applicants had no movable property warrants of arrest were issued against the applicants. The learned Magistrate would have been well advised to look into the papers before ordering the arrest of the applicants, particularly in view of the fact that their liberty was affected. There is, however, no doubt that the order of the learned Magistrate ordering the issue of warrants of arrest against the applicants for the realisation of the amount of the forfeited bonds is illegal in view of the fact that their property was still under attachment and had not been sold for the realisation of the amount. It is only after the movable property has been sold and the amount, or any part of it, still remains due that the warrants of arrest can be issued against the sureties for realisation of such amount.

(3.) I, therefore, accept the reference, set aside the order of the learned Magistrate dated the 10th September 1954 and direct that the case shall be sent back to the learned Magistrate for proceeding according to the provisions of Section 514 Code of Criminal Procedure.