P. N. Goel J. - (1.) :-This is an appeal under section 449 (ii) CrPC. One Kallu son of Usman of village Madarpur, police station Maudaha, district Hamirpur was an accused in Sessions Trial No. 34 of 1973 under sections 395/34 IPC. The trial was pending before the II Additional Sessions Judge. Kallu appeared before the said court on 18-11-1974. He did not appear on 6-1-1975. Consequently his bail bonds were forfeited. Notice was issued to the appellants to show cause why the penalty amount be not realized from them. On 2-4-1975 the appellants appeared and alleged that they produced Kallu before the Chief Judicial Magistrate Hamirpur. Between 6-1-1975 and 2-4-1975 non-bailable warrants were issued on two dates, that is, 17-1-1975 and 26-2-1975. These warrants were received back unserved. It means that Kallu was absconding. Kallu was involved in another crime no. 45 relating to a murder. The Chief Judicial Magistrate issued warrant for his arrest. Thereupon he surrendered before the Cheif Judicial Magistrate. In these circumstances the II] Additional Sessions Judge passed the order for the realization of the full penalty amount.
(2.) THE record of the court below has weeded out. It could not be reconstructed. Learned counsel for the parties have been heard and copy of the order dated 1-9-1975 passed by II Addl. Sessions Judge Hamirpur has been perused. The appellants' counsel has raised three contentions: (1) The bail bonds could not be forfeited by the Sessions Court. (2) Kallu surrendered in connection with another case. He was sent to jail. The appellants, therefore, could not have produced him. The Additional Sessions Judge was not justified in forfeiting the bonds. (3) As the record is not available, this appeal cannot be decided on merits.
(3.) THE above contentions are dealt with one by one. (1) Kallu was involved in a dacoity case punishable under section 395 IPC. He was committed to the court of Sessions in the year 1973. He did not appear on 6-1-1975 before the II Additional Sessions Judge to whom the case was transferred by the Sessions Judge for disposal. It is, therefore, obvious that the provisions of the old Code of Criminal Procedure will apply. Offence under section 395 IPC was exclusively triable by court of Session under the old Code. THE Magistrate could only hold inquiry in accordance with Chapter XVIII of the said Code. THE copy of the order appealed against does not indicate the date on which Kallu was ordered to be released. THEre is also no mention of the date on which the appellants furnished bail bonds. For the purpose of this appeal, it is, however, assumed that the accused was ordered to be released by the Sessions Court before the commitment of the case by the Magistrate to the court of Session. In such an event the committing magistrate will accept the bail bonds and the bonds will be for appearance not only before the Magistrate but also before the court of Sessions. THE learned counsel for the appellants has placed reliance on the case of Lakhan Singh v. State, 1968 AWR (H. C.) 800. In this case the surety bonds indicated that the sureties undertook ta produce the accused on every date of hearing before the Judicial Officer Dataganj or the court to which the case be transferred or before a court of Sessions. Taking into consideration the language of section 514 CrPC it was held that the Magistrate only could order for the forfeiture of the bonds and not the court of Sessions because the bonds were taken by him. On the other side the learned State counsel has referred to two cases decided subsequently. THE first one is the case of Bharosi Lal v. State, 1970 AWR (H. C.) 327 decided by the Honourable Judge who decided the case of Lakhan. Singh (supra). In this case the Food Inspector had released the accused on taking surety bonds. THE bonds were for appearance before the Magistrate. THE accused did not appear before the Magistrate THE Magistrate forfeited the bonds It was held that the Magistrate! had rightlyforfeitedthebonds.lt was observed that the first Fart of section 514 CrPC related to any bond taken by the court and the second part related to a [bond for the appearance of the accused before a court and that any person could (take bonds under the second part. THE other case is of Pratap Narain v. State of U. P., 1972 CrLJ 950. In this case the accused was wanted in a murder case. Pratap Narain and another stood sureties for him in pursuance of (he order of bail granted by the Sessions Judge. THE accused did not appear in the court of Sessions. THE Sessions Judge forfeited the bonds. It was held that the Sessions Judge was competent to forfeit the bonds. THE relevant observation runs as follows : "To my mind it is very clear from the language of the section quoted that the surety bonds could be forfeited either by the Additional District Magistrate (Judicial), the Court by which the bonds were taken if the accused had absconded or jumped bail before the case came to the court of Session and after the case came to the court of Session, and was pending there, only the court of Sessions could have forfeited the bonds and pass necessary orders under section 514 of the Code of Criminal Procedure, as was done in this case. It may be mentioned that a perusal of the bonds will show that the sureties undertook to pay the amounts stipulated therein as penalty in case Rajendra Kumar did not attend the court of the Additional District Magistrate (Judicial) or any court to which the case may be transferred or the court of Sessions lin case the case was committed to the court of Sessions." At this stage it will be useful to re-produce sub-section (1) of Section 514 of the Old Code. It reads : 514(1). Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, Or, when the bond is for appearance before a Court, to the satisfaction of such Court, That such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. It will be seen from the first paragraph that a bond can be forfeited by the Court which has taken it. THE second paragraph further shows that incase the bond is for appearance before a c?urt it can be forfeited by the court before which the accused has to appear. Taking into consideration the second paragraph it is obvious that the court before which the accused has to appear can forfeit the bond. In a case triable exclusively by a Court of Sessions it is obvious that if the bail is granted to the accused before commitment the bonds will be for appearance not only before the committing Magistrate but also before the court of Sessions. THErefore, in such cases the court of Session, after the case has been committed, is the competent court to forfeit the bonds. For what has been discussed above, it is not correct to urge that the Additional Sessions Judge was not competent to forfeit the bond. (2) THE second contention of the appellant's counsel has absolutely no legs to stand. It is true that Kallu accused surrendered in connection with another case and he was sent to jail. This happened subsequent to the forfeiture of the bonds on 6-1-1975. As Kallu did not appear on 6-1-1975, the Additional Sessions Judge could forfeit the surety bonds on the same day. THE subsequent surrendering of Kallu before the C. J. M. does not disentitle the Additional Sessions Judge from forfeiting the bonds on 6-1-1975. (3) With regard to the third contention, reading sections 449, 372 and 386 (d) of the new Code of Criminal Procedure, it is correct to urge that interference with an order or affirmation can be made by a court of appeal after perusing the record. Section 372 corresponds to section 404 of the old Code and section 386 corresponds to section 423 of the old Code. THE record of the instant case has weeded out and could not be re-constructed. THErefore, this court cannot go through the record. THErefore, the learned counsel for the appellants has rightly contended that this Court cannot pass appropriate order without going through the record. There is one obvious difficulty in the case. It is this that the copy of the order appealed against does not indicate the amount of the bonds furnished by the appellants. As the record is not available and it has not been re-constructed it will be difficult for the court below to (realise the penalty amount which is not known. Therefore, the only alternative for the court is to set aside the order passed by the court below.;