Surjit Singh, S. Kartar Singh Vs. the State - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the bail-bond was accordingly cancelled by order of the court passed on 1st of november, 1961. all that the petitioner said in the court was that in spite of his best efforts the accused bbagtu could not be traced. it is true that no other point except his failure to trace the accused was taken before the magistrate who made an order on 26th of february, 1962, that the amount of rs. clearly section 92 is not applicable and the bond of the surety was executed under section 91. the forfeiture has been made under section 514 of the code of criminal procedure, sub-section (1) of which says; except in the case of a bond for good behaviour, permit him to deposit a sum of money or government promissory notes to such amount as the court or officer may fix, in lieu of executing such bond.ordershamsher bahadur, j.1. the question which arises for deter-mination in this petition for revision is whether there could be a valid forfeiture of a bond under section 514 of the criminal p.c. executed not at the instance of a court but by a police officer.2. the petitioner surjit singh stood surety on 5th of april, 1961, for one bhagtu who was an accus-ed person in a case pending in the court of the magistrate 1st class, chandigarh. the bail-bond of the petitioner was in respect of a sum of its. 1,000/. to ensure the appearance of the accused in the court of the magistrate. the allegation of the petitioner that the bond was executed before a police officer and not in a court of law is not disputed. the accused did not appear in court on 4th of october 1961 which was the date fixed in the case and the report on the summons was that he was not traceable. a nonbailable warrant was accordingly issued but again it could not be served on the accused person. the petitioner as surety was then summoned on 13th of november, 1961. despite the time allowed to the petitioner he could not produce the accused in court and made a statement on 15th december, 1961, that he (the accused) was not traceable. the bail-bond was accordingly cancelled by order of the court passed on 1st of november, 1961.all that the petitioner said in the court was that in spite of his best efforts the accused bbagtu could not be traced. the court felt obliged to make an order of forfeiture of the entitle amount of rs. 1,000/-covered by the bail-bond. it is true that no other point except his failure to trace the accused was taken before the magistrate who made an order on 26th of february, 1962, that the amount of rs. 1,000/-should be deposited in court before 12th of march, 1962.3. an appeal was preferred to the district magistrate, ambala, and the ground in the forefront was that the order of forfeiture could not be made as the bond was executed before the police and not in court. this appeal was dismissed by the district magistrate, ambala, on 25th of may, 1962, although the petitioner was not present. the ground of dismissal was that the appeal was barred by limitation, it having been filed 52 days after the announcement of the order of the magistrate. a further petition for revision before the same authority having been dismissed, the petitioner has now invoked the revisional jurisdiction of this court.4. the surety bond has been read over to me and according to its terms the accused had to be produced by the surety on demand (indal talab). it is contended by mr. mahajan that the bond itself does not disclose the court before whom the accused was to appear nor any date is mentioned therein. in such circumstances the bond, in his submission, cannot be enforced. it is not necessary to deal with this argument of the learned counsel as, in my opinion, the petition must succeed on another ground.5. now, under section 91 of the code of criminal procedure:when any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may requiresuch person to execute a bond, with or without sureties, for his appearance in such court.section 92 deals with arrest on breach of bond for appearance and is to this effect:when any person who is bound by any bond taken under this code to appear before a court, does not so appear, the officer presiding in such court may issue a warrant directing that such person be arrested and produced before him.clearly section 92 is not applicable and the bond of the surety was executed under section 91.the forfeiture has been made under section 514 of the code of criminal procedure, sub-section (1) of which says;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 causa why it should not be paid.it has been held by their lordships of the supreme court in rameshwar bhartia v. the state of assam : 1953crilj163 , that action under section 514 of the code of criminal procedure can be takenonly when the bond is taken by the court under the provisions of the code such as section 01 for appearance( the several security sections or those relating to bail. where the security bond is taken from the accused not by the court but by a particular official such as a procurement inspector for production of the property before the court, no action can be taken under section 514 for forfeiture of the bond.though there was an undertaking by the petitioner that the accused person would be produced before the court, it was a promise made to a particular official and not to a court.6. mr. jain, appearing for the state, has invited my attention to 6. 513, criminal p.c. which says that:when any person is required by any court or officer to execute a bond, with or without sureties, such court or officer may. except in the case of a bond for good behaviour, permit him to deposit a sum of money or government promissory notes to such amount as the court or officer may fix, in lieu of executing such bond.for the contention that the bond may be made before any officer. this section, however, contemplates a situation when there may be a deposit instead of recognizance and does not deal specifically with the forfeiture of a security bond executed before a court. there is obviously a lacuna in the code and in view of the clear exposition of the law by the supreme court 1 feel bound to allow this petition for revision and direct that no deposit can be enforced in pursuance of the forfeiture order passed under section 514, criminal p. c.

Judgment:
ORDER

Shamsher Bahadur, J.

1. The question which arises for deter-mination in this petition for revision is whether there could be a valid forfeiture of a bond under Section 514 of the Criminal P.C. executed not at the instance of a Court but by a police officer.

2. The petitioner Surjit Singh stood surety on 5th of April, 1961, for one Bhagtu who was an accus-ed person in a case pending in the Court of the Magistrate 1st Class, Chandigarh. The bail-bond of the petitioner was in respect of a sum of Its. 1,000/. to ensure the appearance of the accused in the Court of the Magistrate. The allegation of the petitioner that the bond was executed before a police officer and not in a Court of law is not disputed. The accused did not appear in court on 4th of October 1961 which was the date fixed in the case and the report on the summons was that he was not traceable. A nonbailable warrant was accordingly issued but again it could not be served on the accused person. The petitioner as surety was then summoned on 13th of November, 1961. Despite the time allowed to the petitioner he could not produce the accused in Court and made a statement on 15th December, 1961, that he (the accused) was not traceable. The bail-bond was accordingly cancelled by order of the Court passed on 1st of November, 1961.

All that the petitioner said in the Court was that in spite of his best efforts the accused Bbagtu could not be traced. The Court felt obliged to make an order of forfeiture of the entitle amount of Rs. 1,000/-covered by the bail-bond. It is true that no other point except his failure to trace the accused was taken before the Magistrate who made an order on 26th of February, 1962, that the amount of Rs. 1,000/-should be deposited in Court before 12th of March, 1962.

3. An appeal was preferred to the District Magistrate, Ambala, and the ground in the forefront was that the order of forfeiture could not be made as the bond was executed before the police and not in Court. This appeal was dismissed by the District Magistrate, Ambala, on 25th of May, 1962, although the petitioner was not present. The ground of dismissal was that the appeal was barred by limitation, it having been filed 52 days after the announcement of the order of the Magistrate. A further petition for revision before the same authority having been dismissed, the petitioner has now invoked the revisional jurisdiction of this Court.

4. The surety bond has been read over to me and according to its terms the accused had to be produced by the surety on demand (indal talab). It is contended by Mr. Mahajan that the bond itself does not disclose the Court before whom the accused was to appear nor any date is mentioned therein. In such circumstances the bond, in his submission, cannot be enforced. It is not necessary to deal with this argument of the learned Counsel as, in my opinion, the petition must succeed on another ground.

5. Now, under Section 91 of the Code of Criminal Procedure:

When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may requiresuch person to execute a bond, with or without sureties, for his appearance in such Court.

Section 92 deals with arrest on breach of bond for appearance and is to this effect:

When any person who is bound by any bond taken under this Code to appear before a Court, does not so appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him.

Clearly Section 92 is not applicable and the bond of the surety was executed under Section 91.

The forfeiture has been made under Section 514 of the Code of Criminal Procedure, Sub-section (1) of which says;

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 causa why it should not be paid.

It has been held by their Lordships of the Supreme Court in Rameshwar Bhartia v. The State of Assam : 1953CriLJ163 , that action under Section 514 of the Code of Criminal Procedure can be taken

only when the bond is taken by the Court under the provisions of the Code such as Section 01 for appearance( the several security sections or those relating to bail. Where the security bond is taken from the accused not by the Court but by a particular official such as a Procurement Inspector for production of the property before the Court, no action can be taken under Section 514 for forfeiture of the bond.

Though there was an undertaking by the petitioner that the accused person would be produced before the Court, it was a promise made to a particular official and not to a Court.

6. Mr. Jain, appearing for the State, has invited my attention to 6. 513, Criminal P.C. which says that:

When any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer may. except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond.

for the contention that the bond may be made before any officer. This section, however, contemplates a situation when there may be a deposit instead of recognizance and does not deal specifically with the forfeiture of a security bond executed before a Court. There is obviously a lacuna in the Code and in view of the clear exposition of the law by the Supreme Court 1 feel bound to allow this petition for revision and direct that no deposit can be enforced in pursuance of the forfeiture order passed under Section 514, Criminal P. C.