M.C.Desai, J. - (1.) One Narsing was being prosecuted (it is not known for what offence) in the Sessions Court and during the pendency of the trial he applied for being released on bail on the ground of his wife's death and the Sessions Judge ordered him to be released on parole for a fortnight on 4-5-1956 on his furnishing two sureties for Rs. 8000/- each to the satisfaction of the committing Magistrate. Accordingly Narsingh produced two sureties, the applicant and another, before the committing Magistrate (Judicial Magistrate, Powayan) on 7-5-56. The applicant executed a bond on that date stating that Narsingh will appear in court every day during the pendency of the commitment proceedings or during his trial in the Court of Session if he was committed there to answer the charge, and that if he failed to appear he will pay the penalty of Rs. 3000/-. On execution of the bond by the applicant and by another surety Narsingh was released on parole. On 15-5-56 he appeared before the Sessions Judge and applied for bail and the learned Sessions Judge extended the period of parole by one week. No fresh bonds were executed by the appli-cant and the surety on 15-5-56. Narsingh did not appear before the Sessions Judge on expiry of a week and thereupon proceedings for forfeiture of the bond were taken in the court of the judicial Magistrate, Poyawan. Neither of the sureties appeared before the Magistrate to show cause and, therefore, the Magistrate ordered the applicant to pay the penalty of Rs. 3000/-. He filed a revision application in the court of the Additional District Magistrate who dismissed it. Actually it was an appeal filed by him but since it was barred by time it was treated as a revision by the Additional District Magistrate.
(2.) This revision application is not maintainable because an appeal lay against the order but was not preferred. Section 439 (5) Cr. P. C. lays down that "where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed". Filing an appeal which is barred by time is as good as not filing any appeal and Sub-section (5) of Section 439 Cr. P. C. will apply. The Additional District Magistrate had no jurisdiction to treat the appeal as revision against the clear language of Sub-section (5). In any case, I cannot accept this revision application, it being barred by Sub-section (5).
(3.) On merits also there is no force. It was contended that since the bond was for appearance before Sessions Judge, only he could forfeit it and direct recovery of the penalty. Reliance is placed upon the following words of Section 514(1) of the Code of Criminal Procedure : "Whenever it is proved to the satisfaction of the court by which 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 etc.";