S.D. Singh, J. - (1.) THIS is an application in revision arising out of proceedings Under Section 514 of the Code of Criminal Procedure. The present Applicant Malkhan Singh and one other person Chiranji had stood surety for Phula alias Phool Singh against whom was pending a case Under Sections 380 and 411 of the IPC. Phoola appeared in court upto 23 -2 -1966, but not thereafter. Proceedings Under Section 514 of the Code of Criminal Procedure were thereafter taken up by the Magistrate. The personal and surety bonds were forfeited. Though show cause notices were directed to be issued, they were in fact not. The ultimate order passed by the Magistrate required the sureties to produce the accused by a certain date and they were also told that if they failed to do so, action would be taken against them. It was reported ultimately that the accused had been shot dead in some encounter with the police. Proceedings against the sureties, however, continued and they deposited the amount of their bonds in cash when distress warrants were issued against them. The Applicant and the other surety Chiranji went up in appeal to the Sessions Judge Under Section 515 of the Code and challenged the correctness of the order made against them. The Sessions Judge has found that the Magistrate had not followed the procedure prescribed Under Section 514 of the Code and consequently held that the order regarding the recovery of the amount from the sureties was illegal. He, therefore, allowed the appeals, set aside the order passed by the Magistrate, but thereafter gave the direction that: The files are sent back to the court below with the direction to dispose of the cases in accordance with the observations made above. Malkhan Singh has come up in re -vision against this order and what was urged on behalf of the Applicant is that the Sessions Judge had no jurisdiction to give any such direction to the Magistrate, meaning thereby that all what the Sessions Judge could do was either to allow the appeal or dismiss the appeal, but he could not direct the Magistrate to proceed against the Applicant afresh in accordance with the observations made by him in the body of the judgment, which means that he could not remand the case for rehearing.
(2.) THE point raised on behalf of the Applicant is beset with some difficulty and there appears to be no direct decision on this point. Section 515 of the Code of Criminal Procedure merely provides for appeal being filed against an order passed Under Section 514 and does not say anything as to how the appeal has to be disposed of and the question naturally, therefore, arise whether the provisions of Ch. XXXI of the Code could be made applicable to the hearing of the appeal Under Section 515. If the provisions of Ch. XXXI do apply to the hearing of an appeal Under Section 515, then in that case a question will arise whether Section 423 of the Code can be so interpreted as to give to the appellate court power to remand the case. There has been some difference of opinion even in respect of the interpretation of Clause (c) and (d) of Sub -section (1) of Section 423 as to whether these clauses give jurisdiction to the appellate court to remand the case. This is the view which has been taken by a Division Bench of this Court in Bhagwat Singh v. Emperor, 24 ALJ 566. The appeal in that case was Under Section 406 of the Code. The question involved for decision was whether in proceedings Under Section 107 of the Code, the Sessions Judge could order a retrial and Valsh and Dalai, JJ. held that an order for retrial was an incidental order within the meaning of Clause (d) of Sub -section (1) of Section 423 of the Code and the same view has been taken in two subsequent Single Judge cases : Ram Swamp v. State, 1956 AWR 587 and Murari v. State, 1957 AWR 683.
(3.) THE same question came up for consideration before A Full Bench in Mannilal v. Emperor, 1937 AWR 290. Sulaiman, C.J. (as he then was) held that neither Clause (c) nor Clause (d) aforesaid entitles the court o pass an order of remand. Under Clause (c) this Court might only alter or reverse the order appealed against and Under Clause (d) make any amendment or any consequential ck incidental order that may be considered just or proper; and it was held that ordering a fresh enquiry or taking fresh evidence did not amount either to amendment of any order or any consequential or incidental order. Niamsatullah, J. with whom Bennet, J. concurred did not express any clear opinion in this respect, but appears to have been of the same opinion. He observed at page 293 Col. 1: It is suggested that Section 423, Clause (c) and (d), Code of Criminal Procedure, are wide enough to enable the appellate court to reverse the order of the subordinate court refusing to make a complaint and as a result of such order, pass the consequential order remanding the case to the subordinate court for fresh proceedings. This view is based on two assumptions, neither of which holds good.;