MALKHAN SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision arising out of proceedings Under Section 514 of the Code of Criminal Procedure. The present Applicant Malkhan Singh and one other person Chiranji had stood surety for Phula alias Phool Singh against whom was pending a case Under Sections 380 and 411 of the IPC. Phoola appeared in court upto 23 -2 -1966, but not thereafter. Proceedings Under Section 514 of the Code of Criminal Procedure were thereafter taken up by the Magistrate. The personal and surety bonds were forfeited. Though show cause notices were directed to be issued, they were in fact not. The ultimate order passed by the Magistrate required the sureties to produce the accused by a certain date and they were also told that if they failed to do so, action would be taken against them. It was reported ultimately that the accused had been shot dead in some encounter with the police. Proceedings against the sureties, however, continued and they deposited the amount of their bonds in cash when distress warrants were issued against them. The Applicant and the other surety Chiranji went up in appeal to the Sessions Judge Under Section 515 of the Code and challenged the correctness of the order made against them. The Sessions Judge has found that the Magistrate had not followed the procedure prescribed Under Section 514 of the Code and consequently held that the order regarding the recovery of the amount from the sureties was illegal. He, therefore, allowed the appeals, set aside the order passed by the Magistrate, but thereafter gave the direction that:

(2.) THE point raised on behalf of the Applicant is beset with some difficulty and there appears to be no direct decision on this point.

(3.) THE same question came up for consideration before A Full Bench in Mannilal v. Emperor, 1937 AWR 290. Sulaiman, C.J. (as he then was) held that neither Clause (c) nor Clause (d) aforesaid entitles the court o pass an order of remand. Under Clause (c) this Court might only alter or reverse the order appealed against and Under Clause (d) make any amendment or any consequential ck incidental order that may be considered just or proper; and it was held that ordering a fresh enquiry or taking fresh evidence did not amount either to amendment of any order or any consequential or incidental order. Niamsatullah, J. with whom Bennet, J. concurred did not express any clear opinion in this respect, but appears to have been of the same opinion. He observed at page 293 Col. 1: