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Chittar Singh and ors. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 725 of 1971
Judge
Reported in1972WLN835
AppellantChittar Singh and ors.
RespondentState of Rajasthan and anr.
DispositionPetition allowed
Cases ReferredGulam Mahdi v. State of Rajasthan
Excerpt:
.....not but be that before a parson con- corned is called upon to show cause why the amount of the bond or penalty thereunder, may not be recovered from him, the court must first be satisfied that the bond stood forfeited and the reason for that satisfaction should not be merely in the mind of the presiding officer of the court but it should be in black and white. unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction. but it would be quite unjustifiable and unreasonable to set aside lengthy proceedings under section 145, when the facts indicate that the parties could not conceivably have been prejudiced by the absence of a formal order, where it is manifest that they knew well all the facts..........that section 514, cr. p.c. shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the court proceed to recover the money. where no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should, therefore, be quashed. this authority can be availed of in deducing an inference that the provisions of section 514, cr. p.c. are mandatory in nature.11. from what has been discussed above, three things are clear. the requirements to comply with the provision of section 514, cr. p.c. are that it must be proved to the satisfaction of the court that the.....
Judgment:

L.S. Mehta, J.

1. This is a revision-petition filed on behalf of Chittar Singh and 9 others, against the order dated August 20, 1971, of Mr. Rama Kant, learned District Magistrate, Bhilwara.

2. The succinct facts of this case are that there existed some dispute between Bhura on the one side and Chittar Singh and his partymen, on the other, regarding some agricultural land, situate in village Sethunia; Bhura apprehended breach of the peace. He, therefore, made an application on 18-12-1967, Under Section 107, Cr. P.C. in the court of first Class Magistrate, Bhilwara, against as many as 21 persons, including the 10 petitioners. A case was then registered under Section 107, Cr. P.C. on February 16, 1968. Thereafter notices were issued under Section 112, Cr. P.C. the same day to show cause as to why they should not be bound over to keep the peace and be of good behaviour for a period of one year. That period expired Thereafter proceedings continued. On April 15, 1969, orders were passed to the effect that the non- petitioners should execute bonds to keep the peace and be good behaviour for one year. Pursuant to that order bonds had been executed. On July 1, 1989, Bhura made an application that on June 3, 1969, he his wife and other members of his family were going to Sethunia and on their way the non-petitioners way-laid them and hurled abuses at them. They also wanted to break the peace. Bhura referred to one more incident of June 25, 1969, relating to the threatened breach of the peace. The Magistrate gave notices to the non-petitioners under Section 514, Cr. P.C. The non-petitioners submitted their replies on September 8, 1969, Thereafter the Magistrate conducted an inquiry. The Court ultimately exonerated the non-petitioners from the charges of the alleged incident of June 3, 1969. Another application was moved by Bhura on November 3, 1969, in which he mentioned the incident of November 2, 1969. Eventually, on February 15, 1971, after necessary inquiry, 4 persons, namely, Chittar Singh, Gordhan Singh, Fateh Singh and Hukma, were held to have conducted themselves contrary to the terms of their bounds and, therefore, bonds were forfeited and each of them was subjected to the penalty of Rs. 500/- The rest of the non petitioners were absolved.

3. An appeal against the above order was filed in the court of District Magistrate, Bhilwara, by the above-named 4 persons. A revision-petition was also filed by Bhura against the rest of the non-petitioners for starting proceedings against them so that their bonds be forfeited and penalty be recovered Learned District Magistrate dismissed the appeal. He accepted the revision preferred by Bhura and directed the First Class Magistrate, Bhilwara, to start fresh proceedings against the other 6 persons.

4. Dissatisfied by the above verdict, this revision-petition has been taken by Chittar Singh and Ors. Learned Counsel for the petitioners submitted that it was necessary for the Magistrate to be first satisfied that the bonds have been forfeited and that he should have recorded the grounds of such proof and thereafter the persons concerned should have been called on to show cause why the amounts should not be paid. But that has not been done in this case and, therefore, the impugned orders are illegal and deserve to be quashed.

5. Learned Counsel for the opposite side supported the judgment of the court below. His contention is that non-recording of the grounds of the proof is a mere irregularity and not an illegality. Learned First Class Magistrate, Bhilwara, recorded the evidence led by both the parties and produced an elaborate judgment. Therefore, non-compliance with the provisions of S,514, Cr. P.C. is a mere irregularity. He has cited some authorities in support of what he has argued.

6. The only point to be considered in this case is whether it was irregular to record the grounds of proof before the petitioners were called upon to show cause why the penalty on account of forfeiture of bonds should not be recovered from them.

7. The relevant portion of Section 514(1), Cr. P.C. reads:

Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken....

that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty there of or to show cause why it should not be paid.

8. A plain reading of Section 514(1) indicates that 3 steps must be taken by the Magistrate:

(1) it must be proved to the satisfaction of the Court that the bond has been forfeited;

(2) the Court has to record the ground of such proof; and

(3) the Court on being satisfied as aforesaid may call upon the person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

9. It is not open to doubt that in Guru Namdeo Chimanji v. Emperor AIR 1938 Nag 275, it was held that even if the court has not separately and formally recorded the grounds of proof, it is sufficient if they exist and appear in the record of the proceedings. The jurisdiction of the Magistrate arises as soon as he is satisfied prima facie that the bond has been forfeited. Omission to record the reasons for his being so satisfied is a matter relating to procedure and not to jurisdiction. It is not disobedience of an express provision as to a mode of trial but rather of an omission in a matter of procedure With great respect I do not agree with the views expressed by the learned Judge of the Nagpur High Court. Section 514, Cr. P.C. is in the nature of penal forfeiture. Its provisions, therefore have to be strictly construed. The wordings of Section 5 14, Cr. P.C. quoted above, connote that it must be proved to the satisfaction of the Court that the bond has been forfeited and it is only after such proof that the person bound by the bond may be called on to show cause why the penalty should not be levied. The issue of a notice in the absence of such proof will render the proceedings liable to be set aside. It is one of the established canon of interpretation that where, as here, the words of a statute are plain and clear and admit of but one meaning, it is not open to the Court to speculate as to the intention of the Legislature. Such intention can be gathered from the words used.

10. Learned Counsel representing Bhura then referred to a Calcutta- decision, reported in Annada Charan v. Emperor AIR 1943 Cal 251. In that case Henderson J. said:

The failure to record a formal order that the bond executed by the accused forfeited before calling upon the accused to show cause why the penalty under the bond should not be paid is a mere irregularity and the High Court will not interfere in revision merely on that ground when the accused had notice and appeared to show cause.

The Calcutta dictum has been reviewed by the Allahabad High Court in Nanhey Shah v. State : AIR1969All403 and it has been held that the main reason why that view was taken appears to be that it was the usual practice of the Magistrates in Bengal, in order to save time, to call upon the person concerned to show cause, without formally recording an order, that the bond had been forfeited. In that context it is difficult to accept that view as correct, merely because a certain practice has grown up with the Magistrates in Bengal under which certain specific provisions of law are ignored or in any case are not complied with. When the Legislature made a specific provision that 'the Court record the grounds of such proof,' the intention could not but be that before a parson con- corned is called upon to show cause why the amount of the bond or penalty thereunder, may not be recovered from him, the Court must first be satisfied that the bond stood forfeited and the reason for that satisfaction should not be merely in the mind of the presiding Officer of the Court but it should be in black and white. Learned Counsel for the non-petitioner then drew attention to a Privy Council decision, reported in Abdul Rehman v. King Emperor AIR 1027 PC 141. In that case it has been laid down by their Lordships of the Privy Council that a mere omission or irregularity to comply with Section 360, Cr. P.C. unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction. This authority is not applicable to this case. It directly deals with Section 360, Cr. P.C which enacts the procedure to be followed after the evidence is completed. The evidence, after its completion, has to be read over to the witness or interpreted to him if it has been taken down in a language which the witness does not understand. Learned Counsel then cited Madan Mohan Lal v. Mst. Sheo Raj Kunwar AIR 1932 All 144. In the head-note (B) of that authority it is given that if an order has not been formally drawn up exactly in the terms of Section 145(1), Cr. P.C. there may be or may not be according to the circumstances of the case great prejudice to the parties. But it would be quite unjustifiable and unreasonable to set aside lengthy proceedings under Section 145, when the facts indicate that the parties could not conceivably have been prejudiced by the absence of a formal order, where it is manifest that they knew well all the facts and contested the matter with the advantage of the knowledge of the whole of the facts. Madan Mohan's case (supra) dealt with the proceedings under Section 145, and not with the proceedings under Section 514, Cr. P.C. In that case the parties were wife and husband. The wife complained that she had been turned out of her house by her husband The Magistrate apprehending breach of the peace took proceedings under Section 145, Cr. P.C. In that case both the parties fought the whole matter out knowing well what they were asked to meet. Rays J. observed that Section 145. is not mandatory and therefore omission in the order in terms of Section 145, Cr. P.C. did not result in any prejudice to any party. The Allahabad case, therefore, has no bearing with the point in issue. The matter was considered by a Division Bench of the Patna High Court in M. Homi v. Deputy Commissioner AIR 1953 Pat 352 and it was of the view that Section 514, being in the nature of penal forfeiture, it has to be given a strict construction. Likewise a Division Bench of the Madhya Bharat High Court in Ajudhya Prashad v. State AIR 1953 MB 4 observed that before an order for forfeiture can be passed under Section 514, Cr. P.C. the court should give a precise finding, based on some evidence, that the bond has been forfeited and then it has to record the grounds of such proof. It is only when this has been done that a notice is to be issued to show cause why the penalty should not be realised. The Court in that case had not recorded the grounds of forfeiture and, therefore, it was held that the stage of giving notice had not reached. The same view has been expressed by Das J. in Bishnu Dalal v. State : AIR1960Ori108 Das J. further made it clear that if the provisions of Section 514, Cr. P.C. are not followed, it would amount to an illegality and not merely an irregularity. The basic authority on the proposition under review is reported in Kishan Narain v. Emperor AIR 1922 Pat 242. In that case Adani J. held that where there has been a failure to carry out the express provisions of law and the Deputy Magistrate acted without jurisdiction in failing to record proof before he issued notices to show cause, the petitioners are entitled to have the proceedings set aside. This decision met with the approval of Fazl Ali J. (as he then was) in the case of Sulmi Kahar v. Emperor AIR 1929 Pat 643. The same view was taken by the Calcutta High Court in the case of Man Mohan Chakravarti v. Emperor AIR 1928 261. Henderson C.J. in that case held that the provisions of Section 514, Cr. P.C. indicate that two steps are to be taken, first, it must be proved to the satisfaction of the court that the bond has been forfeited, whereupon the Court has to record the ground of such proof, secondly, the Court on being satisfied as aforesaid may call upon the person bound by such bond to pay the penalty thereof or to show cause why it should not be paid, The decision has been followed by the East Punjab High Court in the case of Mst. Taro v. Emperor AIR 1949 EP 221. Here I would also like to seek support from a Supreme Court decision, reported in Gulam Mahdi v. State of Rajasthan : AIR1960SC1185 . Though this case does not deal with the recording of proof, but it does deal with issuing of a notice. In that case his Lordship Kapur J. speaking for the Court, observed that Section 514, Cr. P.C. shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the Court proceed to recover the money. Where no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should, therefore, be quashed. This authority can be availed of in deducing an inference that the provisions of Section 514, Cr. P.C. are mandatory in nature.

11. From what has been discussed above, three things are clear. The requirements to comply with the provision of Section 514, Cr. P.C. are that it must be proved to the satisfaction of the Court that the bond has been forfeited and that the Court shall record the grounds of such proof and it is after such grounds have been recorded, that the person bound by the bond may be called on to show cause why the amount of bond should not be paid. In the instant case these essential ingredients of the provisions of law have not been complied with by the First Class Magistrate, Bhilwara. He simply received an application from Bhura and thereupon, without being first satisfied of the proof in writing that the bonds have been forfeited, straight away issued notices. That step is inconsistent with the express mandatory provisions of Section 514, Cr. P.C. Accordingly the Magistrate acted without jurisdiction.

12. On the above ground I must hold that the petitioners are entitled to have the proceeding set aside. The order passed by learned First Class Magistrate Bhilwara, on February 15, 1971 is set aside and so also the order of learned District Magistrate, Bhilwara, dated August 20, 1971. The amount of penalty, if recovered, shall be refunded to the petitioners. Learned Counsel for the non-petitioner wants that the case should be remanded for conducting fresh proceedings, on the application made by Bhura, on July 1, 1969. I do not think, under the circumstances of the case, this request is acceptable.


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