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In Re: Mir Husen Abdul Rahiman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 319 of 1913
Judge
Reported inAIR1914Bom3; (1914)16BOMLR84
AppellantIn Re: Mir Husen Abdul Rahiman
Excerpt:
.....bond should not be forfeited. in the meanwhile the accused was transferred to the court of the magistrate at khalapur,' who forfeited the bond and directed the accused to pay rs. 25. the accused applied to the high court :-;that the magistrate at khalapur had no jurisdiction to make the order under section 514 of the criminal procedure code, as he was not the magistrate who had taken the bond or before whom the accused had to appear on the date of the default.;section 531 of the criminal procedure code relates only to proceeding in a wrong place and cures defects as to local jurisdiction. - - 4. the learned government pleader has relied upon section 537 of the code in support of the argument that it is merely an irregularity, and no failure of justice having been occasioned..........revision of an order by made under section 514 of the criminal procedure code by the second class magistrate of khalapur ordering the petitioner's recognizance bond to be forfeited and directing him to pay rs. 25 as penalty. admittedly the bond in question was taken by the second class magistrate at karjat for appearance before him and the default in appearance had taken place before that magistrate. the notice to the petitioner to show cause was issued by the magistrate at karjat, and the subsequent proceedings with reference to the bond under section 514 of the code were before the magistrate at khalapur.2. the learned district magistrate in appeal was of opinion that legally the forfeiting magistrate was hot empowered under section 514 of the criminal procedure code, but that.....
Judgment:

Shah, J.

1. This is an application for the revision of an order by made under Section 514 of the Criminal Procedure Code by the Second Class Magistrate of Khalapur ordering the petitioner's recognizance bond to be forfeited and directing him to pay Rs. 25 as penalty. Admittedly the bond in question was taken by the Second Class Magistrate at Karjat for appearance before him and the default in appearance had taken place before that Magistrate. The notice to the petitioner to show cause was issued by the Magistrate at Karjat, and the subsequent proceedings with reference to the bond under Section 514 of the Code were before the Magistrate at Khalapur.

2. The learned District Magistrate in appeal was of opinion that legally the forfeiting Magistrate was hot empowered under Section 514 of the Criminal Procedure Code, but that irregularity was cured by Section 531 of the Code.

3. I think that the Magistrate at Khalapur had no jurisdiction to make the order under Section 514, as he was not the Magistrate who had taken the bond or before whom the petitioner had to appear on the date of the default. Section 531, in my opinion has no application to this case. It only relates to proceedings in a wrong place and cures defects as to local jurisdiction. It does not touch a case of this kind where under the specific provisions of Section 514 only a particular Courtis empowered to make the order. Such an order is not included in the specific things mentioned in Section 529 of the Code. It is quite true that it is not mentioned specifically in Section 530 of the Code, but in the absence of any provision which could cure such a defect of jurisdiction as we have in the present case, I am of opinion that the order should not be allowed to stand. The learned District Magistrate has referred to Section 530, Clause (9), as suggesting that the proceedings taken -by a Magistrate under Section 514 not duly authorised would not be void. But in my opinion the inference is not right. This is really a case of a particular Court being authorised to deal with a particular matter, and no provision in the Code, which could excuse a departure from a specific provision of that character.

4. The learned Government Pleader has relied upon Section 537 of the Code in support of the argument that it is merely an irregularity, and no failure of justice having been occasioned thereby, the order should not be set aside. But the section content] plates an order passed by a Court of competent jurisdiction, and as the order in this case has not been made by a Court of competent jurisdiction, in my opinion Section 537 has no application.

5. Therefore without going into the question as to whether there has been any failure of justice in consequence of the Magistrate at Khalapur having made the order, I am of opinion that the order should be set aside as having been made without jurisdiction. The penalty, if recovered, should be refunded.

Heaton, J.

6. I am of the same opinion. It is quite plain that the Magistrate had no jurisdiction to inflict this penalty and his want of jurisdiction is not one of those matters which is cured by any provision of the Criminal Procedure Code.


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