KISHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ONE Kishansingh stood as surety for accused Mangiya in the court of the First Class Magistrate, Kota on 21st November, 1964. Mangiya remained absent on 5th April, 1965. On that day counsel for Mangiya prayed for exempting his attendance on the ground of his illness. This application was granted and the learned Magistrate directed that the accused be produced on 18th May, 1965. On 18th May, 1965 also the accused Mangiya remained absent and his personal bonds and bail bonds were forfeited. A bailable warrant of rupees two thousand was therefore issued to procure his attendance. Sometime afterwards proceeding under sec. 514, Cr. P. C. were also initiated and a notice was issued to the surety Kishansingh to produce Mangiya in the court on 24th September 1965. This notice was served on the surety on 25/26th August. The surety, however, failed to produce Mangiya and the learned Magistrate therefore ordered the recovery of rupees two thousand from Kishansingh, the surety. Kishansingh went in appeal in the court of the District Magistrate, Kota. This appeal came to be decided by the learned Additional District Magistrate, Kota who dismissed the same. Mangiya therefore moved in revision and challenged the order of learned Additional District Magistrate passed in appeal. Before the learned Additional Sessions Judge, amongst others, one particular contention raised on behalf of the applicant Kishansingh was that the Additional District Magistrate was wholly incompetent to hear the appeal under sec. 514 Cr. P. C. as the same could be heard by the District Magistrate and not by the Additional District Magistrate. This contention found favour with the Additional Sessions Judge who after placing reliance on a case reported in Ijat Ali vs. The State (l) came to hold that the term "district Magistrate" does not include an Additional District Magistrate. He consequently on the aforesaid authority held that the appellate order of the learned Additional District Magistrate being without jurisdiction deserves to be quashed. In the view which he took he has made this reference with the recommendation that the appellate order of the learned Additional District Magistrate dated 8th October, 1969 be quashed and the case be sent back to the court of the learned District Magistrate for deciding the appeal on merits.

(2.) THIS reference was originally placed before me in Chambers and there was nobody to oppose the reference. However, after going through the order of reference I felt that there was important point of law involved in the case and therefore I issued notice to the Government Advocate to hear him on the reference. In response to the notice the counsel for the State Mr. N. N. Mathur has put in appearance and addressed me with the help of relevant authorities on the point.