HAJI SHAIK HYDER ALI Vs. STATE

JUDGEMENT

(1.) THE petitioners were sureties for one Saikh Ahmed of Calcutta who was standing trial in G. R. Case No. 4 of 1964 in the court of the Addl. District Magistrate (Judicial), Cuttack, on a charge under Section 420, I.P.C. and Section 27 of the Drugs Act, and executed bail bonds for Rs. 5,000/ -. As thereafter the accused person failed to appear in the court on the date fixed, notices were issued to the petitioners to show cause why the bail bonds executed by them should not be forfeited. After they showed cause the learned Additional District Magistrate (Judicial) considered the same and passed an order under Section 514(5) Cr. P. C. forfeiting the bonds. Against this order of the learned Additional District Magistrate (Judicial), an appeal was filed in the court of the District Magistrate, Cuttack, who being of the view that the expression 'District Magistrate' in Section 515, Cr. P. C. includes an 'Additional District Magistrate (Judicial)', held that he had no jurisdiction to hear the appeal. It is the correctness of this view of the District Magistrate that is challenged in the present revision application. As the question involved in this case is of some importance, especially having regard to the scheme of separation of Judiciary from the Executive which is in operation in the State and as there is some divergence of judicial opinion on this issue, this case which initially came up for hearing before a learned Single Judge of this Court had been referred by him to a Division Bench which in its turn referred the matter to a Full Bench. This is how the matter has come up before us for disposal.

(2.) THE two questions that arise for determination are: - -

(3.) IT is argued by Mr. Palit, learned counsel appearing for the petitioners, relying on Kaluram v. State of Madhya Bharat. AIR 1951 Madh B 67, that the term 'District Magistrate' occurring in Section 515 does not include an 'Additional District Magistrate'. His contention is this: - - The words 'Magistrate other than a District Magistrate' occurring in Section 515 of the Code are significant. An Additional District Magistrate, though he may have all the powers of a District Magistrate under the Code, is still 'a Magistrate other than a District Magistrate' because the Code of Criminal Procedure contemplates only one person as District Magistrate. If, therefore, the expression 'Magistrate other than a District Magistrate' in Section 515 covers an Additional District Magistrate and an order passed under Section 514 by the Additional District Magistrate is appealable, then clearly the words 'District Magistrate' in the expression 'shall be appealable to the District Magistrate' cannot include an Additional District Magistrate, because in that case it would be empowering an Additional District Magistrate to hear an appeal from his own order. He therefore, contends that the expression 'District Magistrate' occurring in Section 515 cannot include an Additional District Magistrate even though he has been conferred with all the powers of a District Magistrate under the Code. Consequently, according to him, it is the District Magistrate alone who is competent to hear the appeal under Section 515 even though the order under appeal is one passed by an Additional District Magistrate empowered under Section 10(2) of the Code with all the powers of a District Magistrate. In support of his contention, he referred to two other decisions namely - -M. A. Gaffur v. State of Assam, AIR 1953 Assam 96; and Ijat Ali v. The State, AIR 1965 Tripura 14. Both the learned Judges who decided the two cases, more or less, assumed that the expression 'District Magistrate' in Section 515, Cr. P. C. does not include an Additional District Magistrate. The question that came up for consideration before a Division Bench of the Calcutta High Court in Bholanath Ghosh v. The State, AIR 1967 Cal 440, referred to by Mr. Palit, related to the question whether an appeal under Section 515 of the Code can be entertained by an Additional District Magistrate empowered under Section 10(2). Following the view expressed by the Madhya Bharat High Court, the learned Judges held that such an appeal cannot be filed in the court of the Additional District Magistrate, for the simple reason that it would lead to an anomaly inasmuch as if the order under Section 514 is passed by the Additional District Magistrate himself, an appeal against his own order would be filed before him. Their Lordships, however, conceded that if an appeal is filed in the court of the District Magistrate, he can transfer it for disposal to an Additional District Magistrate who is duly empowered under Section 10(2) of the Code.