1. This revisional application is directed against an order of the Additional District Magistrate, 24--Parganas forfeiting the bail bonds of the petitioners who stood sureties for accused Muktar Singh who had been committed to the Sessions Court under Section 302/34 I. P. C. and imposing a penalty of Rs. 200/- on each of the petitioners, remitting Rs. 800/- out of each bond, the petitioners having each stood surety to the extent of Rs. 1000/-. A bail order in the case, after commitment, was made by the learned Sessions Judge, Alipore -- his order being to release the accused Muktar Singh on bail io the satisfaction of the District Magistrate, 24--Parganas. The bail bond was executed before the Additional District Magistrate's 24-Parganas who is in charge of the District Magistrate's functions under the Criminal Procedure Code in 24-Parganas district. On the date fixed for the trial of the case, namely, 13-3-61, Muktar Singh failed to appear before the Additional Sessions Judge, to whom the case had been allotted for trial. The learned Additional Sessions Judge, Alipore, thereupon observed is his order dated 13-3-61 that he could not take any steps as the bailbonds were not before his court and he directed the A. D. M., 24--Parganas to please take necessary steps against the sureties under Section 514 of the Cr. P. C. On receipt of a copy of that order, the Additional district Magistrate, 24--Parganas by his order dated 17-4-61 forfeited the bail bonds and directed the sureties to show cause why they should not pay the entire amount of the bond of each of them or in default, to pay up the entire amount. The sureties appeared and showed cause; and after hearing them, particularly in consideration of the fact that the accused Muktar Singh had subsequently been produced by the sureties, the learned Additional District Magistrate reduced the penalty to l/5th of the amount of the bond, namely, to the sum of Rs. 200/-. It is against that order that the petitioners have come up.
2. Mr. A.K. Das Gupta, has urged that since the bond was for the appearance of the accused Muktar Singh before the Court of the Sessions Judge or Additional Sessions Judge or Assistant Sessions Judge, the Additional District Magistrate could not forfeit the bond and direct payment of the penalty, even though the bond had been taken by him under the order of the learned Sessions Judge. In support of this contention, Mr. Das Gupta has referred to the wording of Sub-section (1) of Section 514 Cr. P. C. which is as follows :
'Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken or of the Court of the Presidency Magistrate or a Magistrate of the First Class, or when the bond is for appearance before a Court, to the satisfaction of such Court, 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 thereof or to show cause why it should not be paid'.
Mr. Das Gupta has urged that since the bond was for the appearance before a Court, only that Court could find that the bond had been forfeited and direct payment of the penalty. It may appear from the wording as quoted above that two clauses of Sub-section (1) of Section 514 Cr. P. C. are not mutually exclusive, and that the first clause which is a general clause would apply even in a case where a bond is for appearance before a Court. Such a view has, in fact, been taken by the Allahabad High Court in the case -- Harwarilal v. The State, : AIR1959All751 . That was also a similar case, where the accused had been released by a bail order of a Sessions Judge and the bond had been taken by a Judicial Magistrate. It was held by the Allahabad High Court that since the bond had been taken by a Judicial Magistrate, he could under the first clause of Sub-section (1) of Section 514 Cr.P. C. find that the bond had been forfeited and direct payment of the penalty. Mr. Das Gupta has, however, drawn our attention to a Division Bench decision of this Court taking a contrary view, namely, Hira Lal Sahu v. Emperor, 14 Cal WN 259. That was also a case of a bail bond for appearance of the accused before the Court of Sessions, and on the failure of the accused to appear before the Court of Sessions on the due date proceedings under Section 514 Cr. P. C. had been instituted by a Deputy Magistrate who found that the bond had been forfeited and directed payment of the full penalty. Jenkins C.J., who delivered the judgment of the Bench observed as follows:
'An objection is taken before us that the Deputy Magistrate had no jurisdiction to make this order, and a perusal of Section 514 shows that this contention is well-founded. That section in its opening clause deals first of all with bonds generally and then with bonds for appearance before a Court. So far as the bonds generally are concerned, there is a provision that action may be taken by the Court by which the bond has been taken or by the Court of a Presidency Magistrate or a Magistrate of the First Class. But, in the case of a bond for appearance before a Court, the Tribunal indicated is that Court, and there is no other tribunal. Now, in this case from the terms of the bond, the appearance was to be before the Sessions Court and not before the Deputy Magistrate, and therefore, it is clear that the Deputy Magistrate had no jurisdiction.'
3. It does rot appear that there is any decision of this Court taking a contrary view; and though in view of the wording of Sub-section (1) of Sections 514 Cr. P. C. the view taken by the Allahabad High Court may also appear to be equally reasonable, we do not see sufficient reason to refer the matter to a Full Bench, because we are not prepared to say that the view taken by the Division Bench of this Court led by Jenkins C. J. was an erroneous view.
4. Section 515 Cr. P. C. provides that the High Court or the Court of Sessions may direct any magistrate to levy an amount due on a bond to appear and attend at such High Court or Court of Sessions; but this section only empowers the Sessions Judge to delegate the work of actually levying the penalty imposed to the Court of a Magistrate. There must be a finding by the Sessions Judge before whose court the bond provides for appearance, that the bond has been forfeited and there must also be a notice issued by that Court calling upon the surely to pay the penalty or to show cause why it should not be paid, and it is also that court, namely, the Sessions Court which can, for sufficient reason, reduce the amount of the penalty, Under Sub-section (5) of Sections 514 Cr. P. C. it is only when the final order for payment of the penalty or a part thereof has been passed by the Sessions Judge or the High Court that the matter may be delegated to the Court of a Magistrate for actual levy or realisation of the penalty. In the present case, however, the learned Additional Sessions Judge did not make may finding that the bond had been forfeited and in fact, the bail bond was not before him. He delegated the entire function under Sections 514 Cr. P. C. to the court of the Additonal District Magistrate, This delegation is not Justified under Sections 516 Cr. P. C.
5. In this connection it may be mentioned that in 14 Cal WN 259 the same thing was pointed out by Jenkins, C. J. namely, that delegation to the court of a Magistrate could be made by the Sessions Court only after the order for payment of the penalty had been made. Accordingly, it must be held that in the present case the order for payment of a portion of the penalty by the learned Additional District Magistrate was without jurisdiction.
6. This Rule is, therefore, made absolute and the order of payment of the penalty is set aside.
Amaresh Roy, J.
7. I agree.