Mohammad Hussain Bandy vs The State

Mufti Baha-Ud-Din Farooqi, J.—Twenty two persons including one, Abdul Rashid Begh, were being tried before the City Munsiff, Judicial

Magistrate 1st Class for offences under Sections 341 and 188. R.P.C. Mohammad Hussain Bandy was a surety for the appearance of Abdul

Rashid Begh. During the progress of the case Abdul Rashid Beg defaulted in appearance on 29.7.1971 when the case was fixed for hearing. The

learned Magistrate issued a notice to the surety. Mohammad Hussain Bandey to attend the Court on 29.8.1971 and show cause why he should

not be ordered to pay the penalty provided in the bond. It turned out that 29.8.1971 was a Sunday. The case was taken up on the following day

when the surety Mohammad Hussain Bandy was not present. The learned Magistrate therefore ordered the recovery of the bail amount by

attachment of the moveable property of the surety. The surety went in appeal to the Sessions Judge Srinagar. By his order dated 29.10.1971 the

learned Sessions Judge Srinagar set aside the order of attachment and remanded the case for fresh disposal in accordance with law. Incidentally he

made some strictures against the trial Magistrate and forwarded a copy of judgment to the Hon'ble Chief Justice for his perusal. The Hon'ble Chief

Justice felt that the reasoning given by the Sessions Judge in support of the judgment was not correct and issued a rule why the order made by him

should not be set aside.

I have heard the counsel for the surety and the Additional Advocate General.

Before any person bound by a bond is ordered to pay the penalty provided in the bond or action is taken for the recovery thereof u/s 514,

Cr.P.C. the Court is required to call upon such person to pay the penalty or td show cause why the penalty should not be paid. If any action is

taken without such a notice it is illegal and liable to be set aside. The form of the notice is given under. Form XIV in Schedule 5 of the Code of

Criminal Procedure. The form requires the surety to pay the penalty or to show cause within a period specified in the notice why the payment

should not be enforced. Notice issued in the instant case did not correspond to the prescribed form, in that no period was provided therein within

which the surety should show cause why the penalty should not be paid. Instead it specified a particular date namely 29.8.1971 on which he was

required to attend the Court and file his objections. This may be construed as a substantial compliance with the requirements of Section 514

regarding notice but the fact remains that the date specified in the notice was a public holiday when the Court would not sit and it could not be

obviously possible for the surety to answer the notice. The notice therefore amounted to a denial of opportunity to defend the matter and cannot be

treated either reasonable or valid. It was no notice in the eye of law. No duty was cast on the surety to answer it.

The position would be different if a valid notice were already issued to the surety and then, after he had attended the Court, the case had been

adjourned to a date which was a closed day. In that case no fault could perhaps be found with the notice already issued and the question would be

whether a further adjournment of the case to a day which was a closed day would constitute an interruption in the proceedings entitling him to a

fresh notice. Here it is that it becomes relevant to consider that a duty was cast on him by the initial notice, which was valid and proper, to find out

the next date fixed for hearing in the matter and that he would not be entitled to any fresh notice. It is in such circumstances that it was held in

Ghulam Mohi-ud-Din v. Jamal Shah AIR 1968 J&K 56, relied upon by the learned trial Magistrate that the defendants were bound by the initial

notice and that the time ran against them from the date the ex parte decree was passed against them. That case is clearly distinguishable in the

instant case. Here the initial notice itself was bad. It was no notice in the eve of law. As such the proceedings based thereon were invalid. The

question of interruption in these proceedings did not arise to call in aid the aforesaid decision. The learned Sessions Judge was therefore perfectly

justified in setting aside the order of attachment based upon such notice.

The learned counsel for the surety however, raised an interesting point. He urged that the provisions of Chapter 31 of the Code of Criminal

Procedure do not apply to an appeal u/s 515, Cr.P.C. and even if they do. Section 423, Cr.P.C. cannot be interpreted as giving power to the

appellate Court to remand the case. Accordingly, he further urged, the learned Sessions Judge should have stopped at reversing the order and not

made any further order of remand which is unjustifiable in law and liable to be quashed.

Section 515, Cr.P.C. provides for appeal or revision of orders made u/s 514, Cr.P.C. and says:

All orders passed u/s 514, Cr.P.C. by any, Magistrate shall be appealable to the Sessions Judge or if not so appealed may be revised by him.

The section does not, however, provide as to how an appeal or revision is to be presented, heard or decided. That does not however imply that

the Legislature intended to provide a remedy without any result. The provisions governing these appeals and revisions must therefore be found

elsewhere in the Code.

Chapter 31 of the Code refers to appeals. The opening section of this chapter is Section 404 which reads:

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in

force.

Thus appeals from any order or judgment of Criminal Court may be broadly classified as (a) those provided for by the Code (b) those provided

for by any other law. The appeals provided for by the Code are of two species; One, under Chapter 31 and the second, under other sections of

the Code. That being so, there are three classes of appeals contemplated by Section 404: namely (1) appeals under Chapter 31, (2) appeals under

other sections of the Code and (3) appeals under any other law. All these appeals arise from the judgment or an order of a criminal Court. The

various provisions of Chapter 31 will apply to these appeals according as the provision is of a general nature governing all the classes of these

appeals or of a specific nature governing a particular class or classes of such appeals only. This will be a common standard. There may, however,

be a special provision to the following effect as in Sub-section (2) of the Section 486, Cr.P.C.

The provisions of Chapter 31 shall so far as they are applicable, apply to appeals under this section and the appellate Court may alter or reverse a

finding or reduce or reverse the sentence appealed against.

In such case the provisions of Chapter 31, which may not be applicable otherwise will apply to such appeals. This also appears to be the view

taken by Sulaiman C.J. in Manni Lal v. Emperor AIR 1937 All 305. Niamat Ullah J. with whom Bennet J. agreed do6s not appear to have

endorsed this view. According to him the whole scheme of Chapter 31 shows that it applies only to appeals (a) from conviction Sections 407,

408, 410 and 411. (b) acquittal (417) and (c) certain orders (Sections 405, 406 and 406-A). With respect, I would venture to say that this view is

not correct and so also not the decision based thereupon in Malkhan Singh Vs. State, , in which it was held that the provisions of Chapter 31 do

not apply to an appeal u/s 515 Cr.P.C. On the other hand I am inclined to hold that the various provisions of that Chapter would apply to an

appeal u/s 515, Cr.P.C. according as the provision is of a general nature applicable to all the appeals or of a specific nature governing only a class

of appeals including an appeal u/s 515. Cr.P.C.

The next question is whether Section 423, Cr.P.C. can apply to an appeal u/s 515, Cr.P.C. That section, so far as relevant, reads:

Powers of appellate Court in disposing of appeal. The appellate Court shall then send for the record of the case, if such record is not already in

Court. After perusing such records, and hearing, the Appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of

an appeal u/s 417 the accused if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or

may,

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed

for trial, as the case may be or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction. (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court

of competent jurisdiction subordinate to such appellate Court or committed for trial; or (2) alter the finding, maintaining the sentence, or with or

without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding alter the nature of the

sentence, but, subject to the provisions of Section 106, Sub-section (3), not so as to enhance the same;

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental order that may be just or proper.

The first part dealing with dismissal of an appeal is of general nature and therefore applies to an appeal u/s 515 as well. The second part deals

with the various orders that the Court may make in case it does not decide to dismiss the appeal. Clauses (a) and (b) deal with appeals against

acquittals and convictions and are not therefore applicable to an appeal u/s 515, Cr.P.C. Clause (c) deals with appeals from any other order and

would therefore cover within its purview orders made u/s 514, Cr.P.C. This clause therefore applies to appeals against such orders made u/s 515,

Cr.P.C. So also Clause (d) which is of a general nature and applies to all the appeals under Clauses (a), (b) and (c). In this view I hold that

Section 423, Cr.P.C. applies to appeals u/s 515, Cr.P.C.

This brings me to the question what is the scope of the powers of an appellate Court under Clauses (c) and (d). This question came up for

consideration in AIR 1937 All 305. Sulaiman C.J. observed:

In the second place it is significant that the power of the appellate Court under (c) is very much restricted. It can only alter or reverse such order.

In the earlier categories (a) and (b) the Court could not only reverse or alter the order, but could also direct that the accused be retried or

committed for trial. There is no such analogous provision in (c). The section does not say that the Court may alter or reverse such order and direct

the original Court to enquire into the matter afresh or start proceedings de novo. I am therefore unable to read in (c) a power to order a fresh

enquiry. That sub-section deals with the powers of the appellate Court and lays down what it itself can do and does not provide that it can order

the subordinate Court also to do something other than what it has already done. Lastly (d) authorises the Court to make any amendment or any

consequential or incidental order that may be just or proper.

I am unable to hold that ordering a fresh enquiry or taking fresh evidence amounts either to 'amendment' of any order or any 'consequential' or

'incidental' order. They, to my mind, refer to orders which the appellate Court would necessarily or as a matter of course pass, for instance, on

acquittal; it may order that the fine if paid be refunded or it may pass an order u/s 516-A regarding the disposal of property and so on, Had it been

intended that these words are wide enough to coyer the case of ordering fresh enquiry de novo, then there would have been no need to mention a

re-trial in (a) and (b) because such a power would have been already covered by (d). It seems to me that when in (a) and (b) there is a special

Provision for ordering re-trial then that provision is not intended to be included in the consequential or incidental order mentioned in (d),much less

would I hold that this includes a Dower to take fresh evidence. If that were so, there would be no need to make a special pro-Vision for it in

Section 428, and to restrict it to appeals under Ch. 31.

Agreeing with this view I hold that the power of an appellate Court under Clauses (c) and (d) does not extend to ordering a de novo enquiry

nor also taking further evidence. To that extent the powers of such court regarding remand are restricted.

In the instant case the learned Sessions Judge set aside the order of attachment and not the order which preceded it and which required the

surety to show cause why he should not pay the penalty. If, therefore, while setting aside the order of attachment, the learned Sessions Judge

required the court below to complete the proceedings already initiated by it, it does not amount to an order directing de novo enquiry or taking

fresh evidence. The question of de novo enquiry could arise if the initial order requiring the surety to show cause were also set aside by the

Sessions Judge when perhaps it could be urged that the order was hit by the restriction noticed above. The order of remand made by the Sessions

Judge was purely consequential in nature based, as it was, on setting aside the order of attachment while maintaining the initial order regarding

show cause. I am therefore unable to agree with a contrary view expressed in Malkhan Singh Vs. State, . The decision in that case tries to find

support from a decision of the Supreme Court in Ghulam Mehdi Vs. State of Rajasthan, but, to me it appears, that the said decision does not

actually support the view taken in the Allahabad case

In the Supreme Court case the Magistrate issued notice to the appellant why his bond be not forfeited and the amount recovered from him. The

notice was not served on the appellant and even so an order was made for the attachment of his property. The Supreme Court observed that the

Magistrate could not proceed to attach the property of the appellant unless a proper notice was given to him and he was given an opportunity to

show cause why he should not pay the amount of the bond, On these observations the court set aside the order of attachment without however

making any further order regarding how the magistrate should proceed further in the matter. The absence of any further direction has been

interpreted in the Allahabad case as an authority for the view that no further direction could be made. In my opinion that is not so. The further

direction was implicit in the observations made by the court which it did not perhaps consider it necessary to repeat in the final order, The final

order expressly said that the order of 'attachment' is set aside implying that the order requiring show cause was very much alive and could be

proceeded with in accordance with the observations made in the judgment I am therefore of the opinion that the further order made by the

Sessions Judge is not unjustifiable in law.

For these reasons I uphold the judgment of the Sessions Judge, but not so the strictures made by him against the trial magistrate which. I fell,

are not well merited in that the unsatisfactory disposal of the case by the trial magistrate emanated not from lack of consideration of the matter by

him, as the learned Sessions Judge would put it, but from the doubt and difficulty in which the matter was involved. The rule is, however,

discharged.