1990 P Cr (PLP)

This criminal miscellaneous application has been filed impugning the orders passed by the learned IInd Additional Sessions Judge, Jacobabad in Cr. Rev. Pet: No. 36 of 1988, dismissing the revision application of the present applicant. The facts relevant for the purpose of this application are that one Muhammad Panah was challaned by Tajo Dero Police to face trail under section 436, P.P.C. and he was released on bail on 24-6-1984 on the surety of the present applicant who executed the bond for the sum of Rs.10,000 undertaking to produce the accused in Court on every date of hearing or whenever and wherever required by the Court. The said accused remained absent after 29-6-1987 and consequently after compliance of the legal requirements a notice under section 514, Cr.P.C. was sent to the surety i.e. the present applicant which was returned with the endorsement that he was avoiding to receive the same while it was reported that the accused was absconding and his arrest in near future was not possible. The trial Judge, learned 1st Assistant Sessions Judge, Jacobabad passed an order whereby the accused was declared as proclaimed offender and the bail bond forfeited and writ of attachment was ordered to be issued against the surety for recovery of bond amount of Rs.10,000 and it was against this order that the present applicant had filed a Criminal Revision application before the Sessions Court, Jacobabad which was heard by the learned IInd Additional Sessions Judge, Jacobabad and dismissed by the order passed on 19-10-1989 which is challenged in this application. I have heard Mr. Naraindas D. Kapoor, Advocate for the applicant and Mr. M. Siddiq Kharal, learned Additional Advocate-General. The learned counsel for the applicant has submitted that the order passed by the Assistant Sessions Judge is contrary to the principle laid down by the Hon'ble Supreme Court in case of Dildar v. The State PLD 1967 SC

47. He has further submitted that the original order passed by the Assistant Sessions Judge and a revision was very much competent before the Court of Sessions and as no appeal provided against this order. I have considered the submissions of the learned counsel for the applicant. It appears from the order of the learned 1Ind Additional Sessions Judge that he was misled by the provisions of section 515, Cr.P.C. although in the entire order no provisions or section of Cr.P.C. has been mentioned. The revision application of the present applicant was dismissed by the learned IInd Additional Sessions Judge on the ground that an appeal is maintainable and, therefore, revision application would not lie. In order to appreciate the correct legal position it would be appropriate to reproduce the provision of section 515, Cr.P.C. which reads as under:--

515. Appeal from, and revision of orders under section 514.--All orders passed under section 514 by any Magistrate other than a District Magistrate, shall be appealable to the District Magistrate, or, if, not so appealed, may be revised by him. The above provisions would show that in case an order is passed by any Magistrate other than the District Magistrate, the same shall be appealable before the District Magistrate. This provision could have been applicable in case the order under section 514 was passed by a Magistrate, who is otherwise subordinate to a District Magistrate but in the present case the order is passed by an Assistant Sessions Judge who is not subordinate to the District Magistrate but would fall in sub-ordination of the Sessions Judge. An Assistant Sessions Judge is appointed under provision of section 9(3), Cr.P.C., which reads as "The Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts". It may be further observed that an order of conviction passed by an Assistant Sessions Judge is appealable before the Sessions Judge in case the sentence passed (sic) shall lie to the High Court. A plain reading of section 408, Cr.P.C., would show that the appeal shall lie from an order passed by the Assistant Sessions Judge in case of convicting the accused. In the present case the order which is passed by the Assistant Sessions Judge is not an order of conviction but is an order of forfeiture of bond and recovery of the amount of bond. This order, however, would not be appealable but would be revisable under the provisions of section 435/439, C Cr.P.C. The powers of passing an order under section 439, Cr.P.C., have also been invested upon the Sessions Judge under section 439-A, Cr.P.C., and the same powers can be exercised by an Additional Sessions Judge (sic) to show any such case is transferred under any general or special order of the Sessions Judge I. From the above discussion it may be concluded that an order passed under section 514 by Assistant Sessions Judge is not appealable before the District Magistrate but a revision application challenging the said order would be competent before the Sessions Court and the Sessions Judge or the Additional Sessions Judge if the case is transferred to him is competent to hear and decide the said revision application on merit of the case. This legal aspect of the matter, the learned Additional District Judge is also not supported the impugned order passed by the IInd Additional Sessions Judge, Jacobabad. I accordingly, accept this criminal miscellaneous application, set aside the orders passed by the learned IInd Additional Sessions Judge, Jacobabad and remand the case to the same Court to be heard and decided on merits. N.H.Q./M-1201/K Case remanded.