Decided on June 29,1988

Kamalu Bada Nayak Appellant
STATE Respondents


G.B. Patnaik, J. - (1.)THE Petitioner was the surety for the accused persons who were released on bail during the pendency of a criminal appeal. The appeal having been disposed of the accused persons moved the High Court in Criminal Revision No. 269 of 1983. It is asserted in the application that this Court had exempted the accused persons from surrendering in the Court and also released them on bail. But subsequent to the disposal of the appeal, as the accused persons had not appeared before the Magistrate and also the surety himself did not appear, the Magistrate has passed the impugned order under Section 446 of the Code of Criminal Procedure imposing a penalty of Rs. 10,000/ -. As has been stated earlier, the Magistrate though was cognisant of the fact that the accused persons had approached the High Court yet as there was no stay order from the High Court, the Magistrate had passed the order on 15.3.1984, refusing the prayer for adjournment of the surety. Mr. Mohanty for the Petitioner states that the Petitioner is an Adivasi and on account of his illness could not appear before the Magistrate on 15.3.1934. He further prays that in view of the order of this Court in Criminal Revision, non appearance of the surety on 15.8.1984 should not have been viewed by the learned Magistrate with that seriousness so as to levy a penalty of Rs. 10,000/ - on 16.3.1984, i.e. on the next day. The learned Additional Government Advocate contends that the order levying penalty under Section 446 of the Code of Criminal Procedure is appealable and no appeal having been filed this Court should not interfere by invoking the revisional jurisdiction. True it is that the impugned order is appealable and further it is also admitted that no appeal has been filed. But taking into consideration the area to which this Petitioner belongs and since an appeal by the accused persons has already been disposed of by this Court long back and further in view of my conclusion that the Magistrate was rather hasty and arbitrarily imposed the density in question, in the interests of justice, I would invoke my jurisdiction under Section 482 of the Code of Criminal Procedure and quash the order of the Magistrate dated 16.3.1984 passed in Criminal Misc. Case No. 115 of 1983. This revision is accordingly allowed.

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