K.C. Agarwal, J. - (1.) THIS is a revision under Section 439, Cr.PC filed by the State against the judgment and order of the learned Sessions Judge, Jhansi dated August 7,1973. It appears that the respondents stood sureties for the appearance of one Smt. Ziledarni. Each one of them executed a surety bond of Rs. 4,000/-. Smt. Ziledarni failed to appear on one of the dates fixed by the court for that purpose. Thereupon, notices were issued to the opposite parties for producing her in the court. They although appeared in the court, but, could not produce her. As a result thereof, the bonds were forfeited and notices were issued to the opposite parties requiring them to show cause as to why the amount mentioned in their, bonds be not realised from them. It, however, appears that these notices were not, in fact, served on the sureties, but the ADM (J) still passed an order imposing Rs. 4,000/- as penalty on each one of the opposite parties. Aggrieved by the judgment, the opposite parties preferred an appeal before the learned Sessions Judge. The appeal was allowed by the learned Sessions Judge on the finding that as notices were not served on the opposite parties, therefore, they were entitled to a fresh opportunity. The operative portion of the order reads as under ; The appeal is, therefore, allowed and the order of the lower court for realization of the penalty from the appellants Is set aside. The lower court is directed to give an opportunity to the appellants to show cause why the penalty should not be realised from them and dispose of their objections thereafter.'' Pursuant to the above direction given by the learned Sessions Judge, the Magistrate issued fresh notices to the opposite parties calling upon them to show cause why the penalty mentioned in the bonds be not realised from them. The opposite parties appeared in the court and filed a written objection to the effect that as they bound themselves for producing the accused in the court of the ADM (J) and not in the court of the Additional District Magistrate (Judicial), the court of the Additional District Magistrate (judicial) had no jurisdiction to impose the penalty and realise the same. Having found that the objection taken by the opposite parties did not have any substance, the Additional District Magistrate (Judicial) ordered that the whole amount of penalty imposed on both the sureties be realised from them. The opposite parties, thereafter, preferred an appeal before the learned Sessions Judge, which has been allowed.
(2.) ONE of the points which was raised in the appeal by the opposite parties was that as the Sessions Judge dealing with the earlier appeal had no power to remand the case to the Additional District Magistrate (Judicial) therefore, the impugned order of the Additional District Magistrate (Judicial) passed on 20-2-1973 in pursuance of the said order of remand was without jurisdiction and, as such, was liable to be set aside. The argument raised on behalf of the opposite parties prevailed with the learned Sessions Judge and on that ground the judgment of the Additional District Magistrate (Judicial) dated 20-2-1973 was set aside. Feeling aggrieved by the said judgment, the State has preferred the present revision. Sri V. P. Goyal, learned Deputy Government Advocate, urged that the view taken by the court below that the Sessions Judge dealing with the earlier appeal filed under Section 515 Cr.P.C. did not have the power to remand the case to the Magistrate is erroneous inasmuch as to an appeal filed under the aforesaid provision, the power drawn was from Section 423 CrPG. Pointing out Clause (d) of Section 423 CrPC, the learned counsel for the applicant urged that the amplitude of the said provision is so wide that an order of remand can always be passed by a court to which an appeal lies. He, however, also challenged the correctness of the ruling reported in Malkhan Singh v. State(AIR 1969 Alld. 557), in which it was held by a learned Single Judge of this Court that the provisions of Chap. XXXI of the Code of Criminal Procedure, in which occurs Sec. 423, do not apply to an appeal filed under Section 515 Cr.P.C. In this case it was further held by the learned Single Judge that clauses (c) and (d) of sub-section (I) of Section 423 Cr.P.C. did not confer any power of remand on an appellate court.
(3.) AFTER hearing the counsel for the parties, I do not consider it necessary to go into the question urged by the learned counsel for the State inasmuch as the alternative argument suggested by him concludes the controversy against the respondents and in favour of the State. The alternative suggestion was that even if it be assumed that the appellate court dealing with an appeal under Section 515 Cr.P.C. does not have the power of remand, the power of the Magistrate to realise the amount of penalty after complying with the provisions of Section 514 Cr.P.C. can still be exercised and he can lawfully recover the amount of penalty even if the earlier order relating to recovery was set aside by the appellate court. The submission made is well founded. Section 514 Cr.P.C. deals with the procedure for forfeiture of bond. Sub-section (1) of Section 514 lays down that any person who is bound by such a bond will have to pay penalty, provided he is given an opportunity to show cause as to why it should not be paid. Accordingly, according to sub-section (1) of Section 514 Cr.P.C. a person executing a bond in favour of a court is entitled to have a notice for the purpose of enabling him to show cause as to why the amount be not paid. Once the bond executed by him is forfeited, the liability to pay the penalty under it is not extinguished simply because of the fact that the order of imposition of penalty was earlier passed without issuing any notice as required by sub-section (1) of Section 514 Cr.P.C. The liability to pay the amount mentioned in the bond exists till the amount is paid or it is found by a competent court that the bond executed by him could not be acted upon. Hence, in a case where an order of imposition of penalty is set aside by an appellate court on the ground that the same was passed by the Magistrate without complying with the provisions of sub-section (1) of Section 514 CrPC, it is always open to the Magistrate to take proceedings afresh after he had given an opportunity to show cause why the surety should not pay the amount of the bond. In Ghulam Mahdi v. State of Rajasthan(AIR 1960 SCI 105), a controversy relating to the validity of the proceedings under Section 515 (1) Cr.P.C. came up for decision before the Supreme Court. The Supreme Court found that before a surety becomes liable to pay the amount of the bond forfeited, it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then the court can proceed to recover the money. When no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and, therefore, should be quashed. After quashing the proceedings, the Supreme Court further observed that the Magistrate could not proceed to attach the property of the surety unless a proper opportunity was given to him. It appears from the observations made in this case that it is always open to a Magistrate to start proceedings de novo, if once the proceedings are set aside by the appellate court on the ground that the procedure mentioned in Section 514 m Cr.P.C. had not been earlier adopted;