Decided on January 12,1950

Kaluram S/O Gopal And Another Appellant
Madhya Bharat State Respondents

Referred Judgements :-



Dixit, J. - (1.)THIS is an application in revision arising out of proceedings under S. 514, Indian Criminal P.C. as adapted in Madhya Bharat, The applicants had executed a bond with Sureties for the production of some bullocks in a criminal case in the Tappa Court of Bhorasa. The applicants made a default in producing the cattle on 20.11.1948, the date fixed by the Court. The Tappa Court, after necessary enquiry held on 9 -12 -1948 that the bond had been forfeited and the nazir of the Court to realise the penalty of the bond. Thereupon the applicants appealed to the Court of First Class Magistrate and District sub -Judge, Bhelsa, against the order dated 9 -12 -48 of the Tappa Court. The First Class Magistrate held on 20 -1 -49 that an order under S. 51 of the Code was appealable under S. 515 to the District Magistrate only. He, therefore, returned the memorandum of appeal to the applicants for presentation to the proper Court. When the appeal was put in the Court of Suba and District Magistrate of Bhelsa, the District Magistrate after making a reference to Notfn. No. 8 of 19 -1 -1949 issued from the office of the Chief Secretary and published in the Gazette of 22 -1 -1949, directed the applicants to file the appeal in the proper Court. Subsequently on 27 -1 -1949 the applicants again appealed to the Court of First Class Magistrate Bhelsa. In this appeal the First Class Magistrate adhered to the view expressed by him on 20 -1 -1949, and on 4 -3 -1949 dismissed the appeal. The applicants then filed an appeal against the order dated 4 -3 -1949 in the Court of the Sessions Judge Bhelsa. The learned Sessions Judge held the second appeal to be incompetent and dismissed it. He declined to exercise his revisional powers and make a report to the High Court.
(2.)THE petitioners have now come up in revision to this Court, Counsel for the applicants does not dispute the correctness of the orders of the Sessions Judge and the First Class Magistrate. He is dissatisfied with the order of the District Magistrate. He contends that the power given to the District Magistrate under S. 515 of the Code to hear appeals against orders passed under S. 514 by any Magistrate cannot be cancelled by the Government and that as a matter of fact Notfn. No. 8 of 19 -1.1949 does not purport to divest the District Magistrate of the powers given to him under S. 36 of the Code.
The Government Advocate, in the first instance, contends that the applicants filed no petition for revising the order of the District Magistrate, Bhelsa, and as in this application they do not challenge the correctness of the orders of the Sessions Judge and the First Class Magistrate the order of the District Magistrate cannot toe interfered with in this revision petition. He further argues that S. 41 of the Code empowers the Government to withdraw all or any of the powers conferred under the Code on any person and that according to Notfn. No. 8 of 19 -1 -1949, which is a valid notification the District Magistrate had no power to entertain the appeal presented by the applicant.

(3.)THIS application raises a simple but an important point for consideration. It is common ground that as the bond was forfeited after the Criminal Procedure (Adaptation) Ordinance No. xxxi [31] of 1948 (Samvat 2005) came into force on 20 -11 -1948, the procedure applicable in this case of forfeiture of bond was the one laid down in S. 514, Indian Criminal P.C. of 1898 in Madhya Bharat, the schedule to the Adaptation Ordinance No. 31 of 1948 did dot make any modifications in Ss. 36, 37, 38, 39, 40, 41, 514 and 515 of the Code. Section 36 lays down that:
All District Magistrates, Sub -Divisional Magistrates and Magistrates of the First, Second and Third Classes, have the powers hereinafter respectively conferred upon them and specified in the third schedule. Such powers are called their ordinary powers.

The ordinary powers of a District Magistrate specified in Sch. 3 include the power to hear appeals from or revise orders passed under S. 514 of the Code. Section 515 also provides that:

All orders passed under S. 514 by any Magistrate other than a District Magistrate, shall be appealable to the District Magistrate, or, if not so appealed, may be revised by him.

The Notfn. No. 8 of 19 -1 -1949 was in the following terms:

It is notified for general information that even though the Criminal Procedure Code of India has been adapted for Madhya Bharat, it is the intention of Government that the separation of the Executive from the Judiciary should be firmly established and scrupulously observed. Government are, therefore, pleased to direct that the subas, who have been appointed as District Magistrates under S. 10, Criminal P.C., and the Naib Subas in charge of Sub -Divisions, who have been appointed as Sub -Divisional Magistrates under S. 13, shall exercise only the powers conferred upon them by Chaps. 8, 9 and 11, Criminal P.C.


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