1. In criminal case No. 106 of 1954, a complaint under Sections 420/109, Penal Code was filed by Bherumal against Motumal and Pessumal. The accused persons were permitted to appear through counsel. The counsel was absent on 24-1-1955, the date fixed though he had signed the order-sheet dated 19-1-1955 fixing 24-1-1955 for orders in an application. The learned Magistrate thereupon forfeited the bonds furnished by the accused persons.
No notice calling upon the persons bound by the bond to pay the penalty thereof or to show cause why it should not be paid was issued. Without any such proceedings, the learned City Magistrate, who had recalled the case to his own file, on 17-5-1955 vacated the order regarding the for. feiture of the bail-bonds. Now the learned Sessions Judge has referred the matter to this Court suggesting that this order be set aside.
2. In the reference, Bherumal's learned Counsel appears to support it. Shri Arjan Das appears for the two accused persons. The Public Prosecutor has not put in an appearance.
3. The learned Counsel for the accused persons urges that the action of the learned City Magistrate was justified and correct. He refers to Section 21 of the General Clauses Act and urges that the word 'order' occurring there gives an inherent authority to the City Magistrate to revise the previous order. I am unable to see any force in this suggestion. Indeed I am surprised that this argument should have been advanced.
The word 'order' occurring in Section 21 obviously, refers to subordinate legislation and not to the judicial orders which by their own nature are incapable of revision, amendment or alteration by the same Court unless so permitted by some ex-press provision of the Code of Criminal Procedure.
4. The learned Counsel has next referred to the provisions of Section 514(5), Criminal P.C. This does authorise the Court at its discretion, which' means judicial discretion, to remit any portion of the penalty mentioned and to enforce payment in part only. It is clear that this can be done only when the person bound by the bond is called upon to pay the penalty or to show cause why it should not be paid. Such proceedings not having, been taken, the learned City Magistrate had no jurisdiction whatsoever to vacate the previous order dated 24-1-1955.
5. No other point has been pressed before me.
6. Accordingly, I accept the reference and set aside the order dated 17-5-1955 so far as it relates to the order of forfeiture of the bonds. The reference is accepted in terms above.