LAWRENCE PETER AMARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this revision application, the petitioner challenges the order dated 2nd August, 1975 passed by the learned Additional Sessions Judge, Greater Bombay, summarily dismissing his appeal against the order of the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay in Case No. 240/PN/1974, by which the learned Magistrate after forfeiting the surety bond executed by the petitioner, passed an order detaining him in Civil Jail for a period of one year. The Facts giving rise to this revision application are, briefly, these : One Abdul Hamid Isak was prosecuted in Criminal Case No. 1098/P of 1974 for the alleged offence of dishonesty receiving stolen property under section 411 I.P.C. He being released on bail with one surety in the sum of Rs. 2,000/-, the petitioner stood surety for him. The surety bond was executed by the petitioner on 20th December, 1973. On 7th October, 1974, as the accused in the principal case did not attend the Court, the Court issued a notice to the petitioner to produce the accused and Case No. 240/PN/1974 was registered against him. It is the case of the petitioner that he could not do so, as the petitioner was arrested on 9-11-1974 in connection with some other case. On 28th May, 1975 the proceedings No. 240/PN/1974 giving rise to this revision application was taken up. The petitioner being present, the Magistrate passed the order as under :

(2.) The correctness of the said order was challenged by the petitioner by an appeal to the Court of Session, Greater Bombay. But the learned Sessions Judge summarily rejected that appeal by observing that he agreed with the reasoning given by the learned Metropolitan Magistrate in passing the order.

(3.) The propriety of the said order is challenged by the revision petitioner. Mr. Solshe, the learned Advocate who has appeared in support of this revision application, has assailed the order of the courts below, firstly by pointing out that even if the case were to be covered by the Criminal Procedure Code of 1898. Since the learned Magistrate has not exhausted the remedy under section 386 of that Code, he could not have passed the order straight away directing the detention of the petitioner in Civil Jail. His second contention is that since in the instant case the proceedings to forefeited the bond commenced on 7-10-1974 by issuing a notice to the surety produce the accused, these proceedings should be governed by the Code of Criminal Procedure, 1973, which does not at all provide for the detention of the surety in the Civil Jail. In my opinion, there is considerable force in the submission of Mr. Solshe. Assuming for a moment that the case were to be governed by the Code or 1898, the provisions of section 514 of that Code, as amended by the Maharashtra Amendment Act, 22 of 1960, are this effect :---