P. Govinda Menon, J.
1. The State; has filed this appeal against the order passed by the District Magistrate of Aliped setting aside the order of the Sub Magistrate of Mavslikara for feinting the bond of the respondents under Section 514 Cr.P.C.
2. The first respondent was an accused in an Abkari case charged by the excise range Inspector, Marvellkara. He had executed a bail bond with the second accused as the surety to appear before the Inspector on an appointed day. They did not appear and as the Inspector was satisfied that proceedings should be taken against them' he made a report to the Sub Magistrate for action under Section 39 of the Travancore Abkari Regulation IV of 1073. Section 39 is in the following terms:
When by reason of default of appearance, of a person bailed to appear before an Abkari Inspector, such officer is of opinion that proceedings should be had to compel payment of the penalty or penalties mentioned in the bond of the person bailed or of the surety or sureties he shall forward the bond to the Magistrate having Jurisdiction to try the offence of which the person bail ad was accused, and the Magistrate shall proceed to compel payment of the penalty or penalties in a manner provided by the Code of Criminal Procedure for the recovery of penalties in the like case of default of appearance by a person bailed to appear before his own court.
There is no procedure prescribed in the Abkari Regulation for the Inspector to forfeit the bond. On the either hand provision is made enabling him to forward the bond to the Magistrate having jurisdiction to try the offence against the accused and the section provides that in such a case the Magistrate may proceed to compel payment of the penalty in the manner provided in the Code of Criminal Procedure treating the default of appearance before the Inspector as if the party had defaulted to appear in a case of a bond taken before him to appear before his own court. The procedure that the Magistrate has to follow is prescribed in Section 514 Cr.P.C. The learned District Magistrate has failed to see the purpose for which Section 39 was enacted.
3. There is a similar provision In Section 43 of the Madras Abkari Act 1 of 1886 which corresponds to Section 41 of the Madras Prohibition; Act and Section 49 of the Kerala Prohibition Act. All these sections are) specifically introduced to meet a case of a parson executing a bond before prohibition officers and failure to appear before them.
In the case in Queen-Empress v. Palayathan ILR 18 Mad 48 an accused charged with an offence: under Section 55 of the Abkari Act executed a bail bond for appearance before the Inspector of Salt and Abkari revenue. He failed to appear on receipt of summons and the Inspector applied under Section 43 of the Abkari Act to the stationary Sub-Magistrate to proceed against the surety for recovery of the penalty. The learned Magistrate issued the usual show cause notice and after hearing his explanation exonerated him. The jurisdiction was not questioned but the only question that arose before the High Court was whether under Section 43 the Magistrate was merely an executing officer and Whether it would take away from him the discretion which he would be at liberty to exercise if the defaulter had failed to appear before his own court. Their Lordships held:
we are of opinion that the legislature could not have intended such a result, and that the intention was to make all the provisions of Section 514 Cr.P.C. applicable to a Magistrate enforcing a penalty on the application of an Abkari Inspector under Section 43, Madras Act 1 of 1886.. From the fact after the Inspector is directed to send the bond to the Magistrate 'having jurisdiction to try' the offence of which the person bailed is accused, the intention of the Legislature would appear to have been that the Magistrate should proceed in the same manner and with the same power as if the default had been made by a person bailed to appear before his own court. This inference is strengthened by the fact that where the legislature intended as in Section 516, Cr.P.C. that the Magistrate should have no discretions, but should merely execute the orders of superior authority, the directions to levy the amount may be addressed to 'any' Magistrate.
The wording of Section 43 of the Madras Abkari Act and the wording of Section 39 of the Travancore Abkari Regulations Is the same.
4. The learned District Magistrate has relied on a decision in Dhannu Lai v. State AIR 1953 Madh B. 94. That was a case of a bond taken under the Opium Act, and It is pointed out by the learned State Prosecutor that in the Opium Act there Is no such provision corresponding to Section 39 of the Travancore Abkari Regulations and that must be the reason why their Lordships held that the bond could not be dealt with under Section 514 Cr.P.C. So that decision can have no application to the facts of this case. The view taken by the learned District Magistrate, therefore, appears to be wrong. It was pointed out that the learned Sub Magistrate has proceeded on the basis that the second respondent had admitted the Execution of the bail bond which was not really so and that I a chance may be given to him to show cause why the boner should not be forfeited.
So in setting aside the order of the learned District Magistrate and the Sub Magistrates, I remit the case to-the Sub Magistrate for fresh disposal according to law after notice to the respondents.