Ram Parshad vs The State

D.B. Lal, J.—This is a reference made by the learned Addl. Sessions Judge, Dharamsala, presumably u/s 438 of the Code of Criminal Procedure in a case u/s 514 of the said Code. The facts of the case as these appear from the judgment of the learned Addl. Sessions Judge are, that four cases under Sections 411, 457 and 380 of the Indian Penal Code were instituted against one Om Parkash in the year 1969. Ram Parshad Petitioner before the learned Addl. Sessions Judge, stood surety for Om Parkash. He had given surety bonds each in the sum of Rs. 1,000/- in the four cases. Om Parkash accused did not appear on 16-12-1969 and 7-1-1970 in two of the cases and within the meaning of Section 514 since the bond was for appearance before the Court, the same was forfeited by the Magistrate. Thereafter a notice to show cause was issued. These notices were issued on 24-2-1971 and 26-2-1971. Finally on 7-7-1971 the learned Magistrate found that the grounds shown were insufficient and, therefore, he forfeited the entire amount and took steps to realize it by way of penalty.

As the judgment of the learned Sessions Judge reveals, subsequently some appeal was filed before the Sessions Judge against the, order dated 7-7-1971 and in that appeal it was decided that the order dated 7-7-1971 was withdrawn by the learned Magistrate on 12-8-1971 and, therefore, the appeal became infructuous and hence was dismissed. A show cause was issued to the Petitioner on 25-8-1971 and he gave the reply on 7-12-1971. Finally on 14-1-1972 the learned Magistrate reduced the amount of penalty by 50%. Against that order a revision was filed before the learned Additional Sessions Judge which is the subject matter of the present reference.

The judgment written by the learned Addl. Sessions Judge is somewhat confusing. He has expressed his doubt as to the validity of the order dated 7-7-1971. In fact that order was not under revision before him and he need not have expressed any opinion regarding it. The only point which appears to be pertinent was the order of withdrawal by the Magistrate of his previous order dated 7-7-1971. It is evident the order dated 7-7-1971 was a judgment within the meaning of Section 369 of the Code. The said judgment was not required to be altered or reviewed except to correct a clerical error. The learned Magistrate by withdrawing that order has really set it aside which was not his function. On this short ground the revision was amenable and the decision dated 14-1-1972 could be interfered with. When the previous order dated 7-7-1971 stood as such and the said order could not be withdrawn, any subsequent proceedings after withdrawal order were illegal and the judgment dated 14-1-1972 was liable to be quashed. This has been recommended by the learned Addl. Session Judge.

Accordingly I accept the recommendation and set aside the order of the learned Magistrate dated 14-1-1972. The effect will be that the order dated 7-7-1971 will stand. However, the Petitioner may take recourse to any proceeding under revision or appeal or otherwise against that order to which he may be entitled to under law.