STATE OF KERALA Vs. VEEVI AMMAL
LAWS(KER)-1963-11-2
HIGH COURT OF KERALA
Decided on November 04,1963

STATE OF KERALA Appellant
VERSUS
VEEVI AMMAL Respondents


Referred Judgements :-

DHANNU LAI V. STATE [REFERRED TO]


JUDGEMENT

- (1.)The State has filed this appeal against the order passed by the District Magistrate of Alleppey setting aside the order of the Sub Magistrate of Mavelikara forfeiting the bond of the respondents under S.514, Cr. P.C.
(2.)The first respondent was an accused in an. Abkari case charged by the Excise Range Inspector, Mavelikara. He had executed a bail bond with the second accused as the surety to appear before the Inspector on an appointed day. They did not appear and as the Inspector was satisfied that proceedings should be taken against them he made a report to the Sub Magistrate for action under S.39 of the Travancore Abkari Regulation IV of 1073. S.39 is in the following terms:
When by reason of default of appearance, of a person bailed to appear before an Abkari Inspector, such officer is of opinion that proceedings should be had to compel payment of the penalties mentioned in the bond of the person bailed or of the surety or sureties, he shall forward the bond to the Magistrate having jurisdiction to try the offence of which the person bailed was accused, and the Magistrate shall proceed to compel payment of the penalty or penalties in the manner provided, by the Code of Criminal Procedure for the recovery of penalties in the like case of appearance by a person bailed to appear before his own court.

There is no procedure prescribed in the Abkari Regulation for the Inspector to forfeit the bond. On the other hand provision is made enabling him to forward the bond to the Magistrate having jurisdiction to try the offence against the accused and the section provides that in such a case the Magistrate may proceed to compel payment of the penalty in the manner provided in the Code of Criminal Procedure treating the default of appearance before the Inspector as if the party had defaulted to appear in a case of a bond taken before him to appear before his own court. The procedure which the Magistrate has to follow is prescribed in S.514, Cr. P.C. The learned District Magistrate has failed to see the purpose for which S.39 was enacted.

(3.)There is a similar provision in S.43 of the Madras Abkari Act I of 1886 which corresponds to S.41 of the Madras Prohibition Act and S.49 of the Kerala Prohibition Act. All these sections are specifically introduced to meet a case of a person executing a bond before prohibition officers and failure to appear before him.
In the case in Queen Empress v. Palayathan (ILR 18 Mad. 48) an accused charged with an offence under S.55 of the Abkari Act executed a bail bond for appearance before the Inspector of Salt and Abkari Revenue. He failed to appear on receipt of summons and the Inspector applied under S.43 of the Abkari Act to the Stationery Sub Magistrate to proceed against the surety for recovery of the penalty. The learned Magistrate issued the usual show cause notice and after hearing his explanation exonerated him. The jurisdiction was not questioned but the only question that arose before the High Court was whether under S.43 the Magistrate was merely an executing officer and whether it would take away from him the discretion which he would be at liberty to exercise if the defaulter had failed to appear before his own court. Their Lordships held:

We are of opinion that the Legislature could not have intended such a result, and that the intention was to make all the provisions of S.514, Cr. P.C. applicable to a Magistrate enforcing a penalty on the application of an Abkari Inspector under S.43, Madras Act I of 1886. From the fact that the Inspector is directed to send the bond to the Magistrate having jurisdiction to try the offence of which the person bailed is accused, the intention of the Legislature would appear to have been that the Magistrate should proceed in the same manner and with the same power as if the default had been made by a person bailed to appear before his own court. This inference is strengthened by the fact that where the Legislature intended as in S.516, Cr. P. C., that the Magistrate should have no discretion, but should merely execute the orders of superior authority, the direction to levy the amount may be addressed to any Magistrate.

The wording of S.43 of the Madras Abkari Act and the wording of S.39 of the Travancore Abkari Regulation are the same.

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