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Writ Petition No. 61 of 1963, decided on 21st May 1964.
Ss. 11 & 20 read with Criminal Procedure Code (V of 1898), S. 514‑Deputy Commissioner acting under F. C. R.‑--Whether not a "Court" Surety Bond executed for appearance of accused before Magistrate Whether Deputy Commissioner competent to forfeit after case has been withdrawn from Court of Magistrate and referred to Council‑of‑Elders (Jirga) under F. C. R.
A person accused in a murder case was charged before a Magistrate. He was released on furnishing surety bond. Subsequently, the case having been found judicially weak' by the prosecuting agency, the Deputy Commissioner withdrew the case from the Court of the Magistrate for action under the Frontier Crimes Regulation, 1901. The case was consequently withdrawn and the accused was directed to appear before the Deputy Commissioner on a certain date. The accused, however, absented himself on the due date and thereafter became a fugitive from law. The Deputy Commissioner thereupon initiated proceedings under section 514, Criminal Procedure Code, 1898 against the sureties and ordered the bond to be forfeited. In writ petition against the order of forfeiture it was contended that since the accused was released on bail by a Magistrate, the Deputy Commissioner had no jurisdiction to order the forfeiture of the security under section 514, Criminal Procedure Code, 1898. It was further argued that the Deputy Commissioner while acting under the Frontier Crimes Regulation is not a "Court" and as such section 514 of the Code does not confer on him any jurisdiction to order forfeiture of such a bond. On a reference, to the Full Bench, of the question "whether the Deputy Commissioner is competent to order the forfeiture of the surety bond taken by a Magistrate before the matter was referred to the Council‑of‑Elders under the F. C. R:
Held, the Deputy Commissioner under section 20 of the Frontier Crimes Regulation has got all the powers of a Court given in section 514, Criminal Procedure Code, 1898 for enforcing the attendance of the parties and witnesses and for these matters could order the forfeiture of the surety‑bond even if it be found that the Deputy Commissioner is not a "Court". However, it is nowhere laid down that the Commissioner and the Deputy Commissioner acting under the Frontier Crimes Regulation are not "Courts". The words "the Courts constituted under any law other than this Code" occurring in the beginning of section 6 of the Criminal Procedure Code, 1898 confirms the existence of Courts under other laws in addition to the Courts mentioned in section 6 of the Code. Further section 19 (2) of the Frontier Crimes Regulation provides that the record shall be made by the Deputy Commissioner in English, and in his own hand, unless for any sufficient reason he is prevented from so making it in which case he shall record the reason of his inability and shall cause the record to be made from his dictation in open Court. The use of the words "open Court" point out that the Deputy Commissioner functions as a Court. The Deputy Commissioner, therefore, while acting under the Frontier Crimes Regulation acts as a "Court" and he is, by virtue of section 20 of the Regula tion, competent to order forfeiture of surety‑bond even if such bond was furnished in another Court under the Criminal Procedure Code.
Hira Lal Sahu v. Emperor 3 I C 113; Karali Charan Chatter Ji v. The King A I R 1949 Pat. 196; Samandur and others v. The Crown P L D 1954 F C 228; Nur Muhammad and others v. Emperor A I R 1944 Lah. 396 and Emperor v. (Private) T. L. A. Johnson A I R 1933 Pesh. 6 ref.
S. Masoom Shah for Petitioner.
Sher Bahadur Khan A. A. G. for the State.
Dates of hearing: 20th and 21st March 1964.
---Before the points referred by Division Bench to the Full Bench are mentioned, it is necessary to give the detailed facts which gave rise to the present writ petition. Mirza Khan, brother‑in‑law of Muhammad deceased, reported in the Police Post Ustarzai, Kohat District, on the 15th of March 1962, at 10 a.m. that at about 11 p.m. last night, he and Mst. Feroza, the wife of the deceased, heard the report of the shots from the direction of the water‑mill, where the deceased had gone for work, in the evening. She and Mirza Khan were then in the house of the deceased. Mst. Feroza wife of the deceased, awakened Mirza Khan, and suspecting foul play, they went to the water‑mill, to find the deceased lying murdered there. Many people collected at the spot after the occurrence. Since no one had witnessed the occurrence, therefore, Gul Miran, now absconding accused, and one Asmat, were charged on suspicion in the first information report, because they had enmity with the deceased. During the course of the investigation, the police arrested Muhammad Ali, Shah Said, and Gul Miran absconder as being the murderers of the deceased. Asmat, however, was not arrested. After the necessary investigation, the case was put in the Court of Mr. Misbahuddin Mahmood, Magistrate First Class who enlarged Gul Miran, now absconding accused, on furnishing bail‑bond in Rs. 5,000 with six sureties. In the mean time, Mr. Misbahuddin, Magistrate First Class, Kohat, was transferred and Mr. Zahoor Muhammad Khan succeeded him in the office. When the case was pending in the Court of Mr. Zahoor Muhammad Khan, a report was submitted by the Prose cuting Agency to the Deputy Commissioner, Kohat, who was also a District Magistrate. In this report, it was said that the case was judicially weak, and therefore, it would not succeed in a judicial Court, and, accordingly, if should be referred to a Council‑of‑Elders under section 11, F. C. R. The Deputy Commissioner, Kohat only recorded the word "withdraw", under this report on the 19th of May 1962. As a result the Public Prosecutor, Kohat, made a statement in the Court of the Magistrate on the 27th of June 1962, that he had been permitted by the Deputy Commissioner to withdraw this case for reference to the Council‑of‑Elders under the F. C. R., and he also prayed that further proceedings in the case be stayed, and the file be sent to the Deputy Commissioner, Kohat, for action under the F_ C. R. Mr. Zahur Muhammad Khan passed the order on the same date to the effect that "in view of the above statement of the P. P., Kohat further proceedings in this case are hereby stayed and the file of the case be sent to the Deputy Commissioner, Kohat, for action under the F. C. R. The accused on bail shall appear before the Deputy Commissioner, Kohat, on the 28th of June 1962".
2. It appears from the record that Muhammad Ali and Shah Said appeared before the Deputy Commissioner on that date while Gul Miran absented himself and thereafter became an out law and has not surrendered up to this time. The Deputy Commissioner after summoning Gul Miran many times, and having failed to secure his attendance, referred the case to the Council‑of‑Elders by his order, dated the 28th of November 1962, against all the accused persons, including Gul Miran absconder (against whom the reference was made in absentia). The Council -of‑Elders returned the award, on the 26th of January 1963, of not guilty in respect of Muhammad Ali and Shah Said accused, and guilty regarding Gul Miran absconder. On this award, the Deputy Commissioner recorded the order of acquittal in favour of Muhammad Ali and Shah Said and as against Gul Miran absconder, he directed that the case should subsist and revive on his apprehension.
3. When the Deputy Commissioner failed to secure the attendance of Gul Miran in the Court in spite of the repeated issuance of processes, he initiated proceedings under section 514 Cr. P. C. against the sureties. On the 2nd of January 1963, long after the case was referred to the Council‑of‑Elders, the Deputy Commissioner ordered that since the sureties had not complied with the terms of the bond, therefore, the amount of Rs. 5,000 of the bond stood forfeited under section 514, Cr. P. C.
4. Muhammad Ali, one of the six sureties, has applied under Article 98 of the Constitution, wherein he has challenged this order of the Deputy Commissioner forfeiting the amount of Rs. 5,000 of the surety‑bond on the ground that the Deputy Commissioner had no jurisdiction to order the forfeiture under section 514, Cr. P. C. as he was not a "Court", and that the surety‑bond was executed by them for appearance of the absconder in the Court of Mr. Misbahuddin, Magistrate First Class.
5. A reference to the bail‑bond at this stage would be pertinent. In this bail‑bond the sureties had undertaken severally and jointly to produce Gul Miran in the Court in which the surety‑bond was executed, and in any other Court, to which the case was transferred. This writ petition came up before a Division Bench of this Court. The Court admitted this petition to full hearing with the following observations:‑
"The counsel contends that since the accused was released on bail by Mr. Misbahuddin Magistrate the Deputy Commissioner had no jurisdiction to order the forfeiture of security under section 514, Cr. P. C. and he relies upon Hira Lal Sahu v. Emperor 3 1 C 113 and Karali Charan Chatterji v. The King (A I R (36) 1949 Pat. 196), in support of this contention that where a surety bond is executed for appearance of the accused before a Particular Court, it is that Court alone which has jurisdiction to forfeit the bond upon failure of appearance and not the Court to which the case is subsequently transferred.
He further contends that the Deputy Commissioner when acting under the F. C. R. is not a "Court" and section 514 Cr. P. C. does not confer any jurisdiction upon him. In support of this contention, he has cited Samandur and others v. The Crown (P L D 1954 F C 228). These points require con sideration. "Admitted." Notice".
When this writ petition came up for full hearing, the Court recommended that the matter be referred to a Full Bench as according to it, the points involved were al' considerable importance. The learned Division Bench, while referring tile matter to the Full Bench, remarked in the following words:‑
"In Nur Muhammad and others v. Emperor (A I R 1944 Lah. 396), it was held by the Lahore High Court that any order passed by the Deputy Commissioner under section 20 of the F. C. R. is revisable by the Commissioner and is not open to appeal to the High Court, The question which is now raised in the writ petition is whether a surety‑bond, which was furnished when the case was still before the Magistrate could be forfeited by the Deputy Commissioner, acting under the F. C. R., after the withdrawal of the case.
"In view of the language of section 514, Cr. P. Code there appears to be force in the argument, but as the question whether the Deputy Commissioner under the F. C. R., could forfeit a surety‑bond taken by a Magistrate before the case was actually withdrawn is of considerable importance and will have far reaching effect, we consider it desirable that this case should be referred to a Full Bench, and we order accordingly."
The only question, therefore, referred for the decision of the Full Bench is whether the Deputy Commissioner is competent to order the forfeiture of the surety‑bond taken by a Magistrate before the matter was referred to the Council‑of‑Elders under the F. C. R.
6. As has been narrated above in this judgment, the Deputy Commissioner had ordered the forfeiture of the amount of the surety‑bond long after he had referred the case to a Council‑of- Elders. Section 20, F. C. R. empowered him to do so. Section 20 F. C. R. provides
"Where a reference is made to a Council‑of‑Elders under this chapter, the Deputy Commissioner may exercise all or any of the powers conferred by the Code of Civil Procedure and the Code of Criminal Procedure, 1898, respectively, as the case may be, for the purpose of compelling the attendance, before himself or the Council‑of‑Elders, of the parties and witnesses, or any of them, in any case and at any stage of the proceedings."
7. Section 20 of the F. C. R. came under the examination o f Blacker, J. in 1944 in the case Noor Muhammad and others v. The Emperor (A I R 1944 Lah. 396). The learned Judge found:‑
"Under section 20 once a case has been referred to Jirga' all the proceedings relating to the compelling of the attendance of the accused, which manifestly include the forfeiture of security where the accused has defaulted, also come under section 20 and are no longer to be held under the Criminal Procedure Code, though the powers exercisable are those which could be exercised under that Code. Accordingly where the case against the accused was started under the Criminal Procedure Code and the bonds were taken under the Criminal Procedure Code, and the case was referred to the Council‑of -Elders before the bonds became forfeit, the forfeiture of bonds would he governed by section 20 of the Regulation.
Even if the Deputy Commissioner took the bond under Criminal Procedure Code as District Magistrate and the case was then referred to the Council‑of‑Elders the bond would come within the mischief of section 20 of the Regulation and if it has to be forfeited it is that section which would govern the matter and he can only act as a Deputy Commissioner under the Regulation. The fact that the Deputy Commissioner signed the order of forfeiture as District Magistrate and not as Deputy Commissioner is irrelevant. The order for forfeiting the bond would be revisable by the Commissioner under section 49 of the Regulation and the High Court would have no jurisdiction in the matter."
8. This judgment covers both the points, on which the Division Bench had admitted the writ petition, and also the point referred to the Full Bench for consideration, namely, that after the case has been referred to the Council‑of‑Elders, the Deputy Commissioner can order the forfeiture of a surety‑bond under section 20, F. C. R., and secondly, he was competent to order the forfeiture, even‑if that bond had been taken by him or by any other Magistrate, acting under the Criminal Procedure Code. In the present case, the term of the bond itself is that the sureties would be responsible to produce Gul Miran before the Magistrate in whose Court the bond was executed and also before any other Court, to which the case was transferred. The Deputy Commissioner under section 20, F. C. R. has got all the powers of a Court given in section 514, Cr. P. C. for enforcing the attendance of the parties and witnesses, and for these matters could order the forfeiture of the surety‑bond, even if it was found that the Deputy Commissioner was not a "Court".
9. S. Masoom Shah counsel for the petitioner urged that the Deputy Commissioner and the Commissioner acting under the F. C. R. ace persona designata and not "Courts". This contention is based on the decision of the Federal Court in case Samandur v. The Crown (P L D 1954 F C 228). I have carefully read this judgment. In the main judgment recorded by A. R. Cornelius, J. no such decision has been made. The only portion touching this matter is contained to the observations of Akram, J. on page 230 of the report, which are to the following effect:‑
"The Deputy Commissioner and the Commissioner in this respect appear to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made to the course of performance of the normal duty of admi nistration of justice to a litis contestation. These orders are merely executive or administrative orders which have been made with a view to extirpating a social evil and subsequently the Courts cannot enquire into the validity of the finding of the Council- of‑Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. Further more the jurisdiction of the Courts seems to have been clearly and expressly barred by section 50 of the Regulation."
In the main judgment, A. R. Cornelius, J. had further amplified the position in his lordship's observations on page 235 of the report, which run as follows:‑
"On a careful consideration of the statutory provisions and the procedure actually followed in enquiries of this nature, I am satisfied that, if the ascertainment of the commission of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontier Crimes Regulation, can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration. "Trial by Jirga cannot be regarded as a summary trial, of the nature provided by the Criminal Procedure Code. As these cases themselves show, shortening of the duration of a case is not a necessary or even an intended result of reference to Jirga. The exact procedure to be followed in summary trials is laid clown in the Criminal Procedure Code. Such trials must follow either the summons case procedure or the warrant case procedure even though the record is maintained in a form, different from and much briefer than that prescribed for ordinary trials. In the case of Jirgas, no procedure of any kind is laid down. The requirements are that there should be such enquiry "as may be necessary" and that the accused person should be heard. By the proviso to section 50 of the Regulation, the Commissioner is debarred from interfering with a finding of fact recorded by a Jirga, which has been accepted by the Commissioner, unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a mis carriage of justice.' In the absence of any rule, the ascertain ment of material irregularity or defect except perhaps in cases where there has been no enquiry at all, or the accused person has not been heard at all, would vary according to the opinion of the particular Commissioner in relation to each particular case, and consequently there is no scope for imposing any specific measure of regularity upon the proceedings of Jirgas, with the aid of section 50 . . . . . "
10. In the above judgment I do not find that even the Federal Court had found that the Deputy Commissioner or the Commissioners are not "Courts". What was said by Akram, J. was that they are persona designata, and not judiciary. The sum and substance of this judgment, as I understand it is that the Deputy Commissioners and Commissioners proceed under the F. C. R. not as judicial Courts" their activities having not been regulated by any law of procedure or of evidence and therefore, their decision could not legitimately be gone into, and considered by the High Court, or the Supreme Court, by the application of ordinary rules provided by the Cr. P. Code, and law of Evidence. It is nowhere laid down that the Deputy Commissioner and the Commissioner are not "Courts" in the general sense in which that term is understood. On the other hand, section 6 of the Criminal Procedure Code confirms the existence of other Courts in addition to those enumerated in this section. Section 6 Cr. P. C. Provides:‑
"Besides the High Courts and the Courts constituted under any law other than this Court for the time being in force, there shall be five classes of Criminal Courts in (the Province), namely‑
(i) Courts of Session;
(ii) Presidency Magistrates;
(iii) Magistrates of First Class;
(iv) Magistrates of the Second Class; (v) Magistrates of the Third Class."
In the beginning of this section when it is written "the Courts" constituted under any law other than this Code," it confirms the existence of "any other Courts under any other law in addition to the Courts mentioned in this section. The question whether the Deputy Commissioner is a "Court" further finds support from the language used in sections 12, 13 and 19 (2) of the Frontier Crimes Regulation. The Deputy Commissioner passes the sentences on the finding of the Jirga in accordance with the provisions of the Criminal Procedure Code as laid down in section 12. Under section 13 any sentence passed under section 12 shall be executed in the manner provided for the execution of sentence passed by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure. Section 19 (2), F. C. R. provides that the record shall be made by the Deputy Commissioner in English, and in his own hand, unless for any sufficient reason he is prevented from so making it, in which case he shall record the reason of his inability and B shall cause the record to be made from his dictation in open Court, The words open Court point out that the Deputy Commissioner was functioning as a Court, and he had got the record to be made from his dictation in open Court.
11. The question if the District Magistrate, acting on the award of the Council‑of‑Elders under the Frontier Crimes Regula tion was a "Court" came under the examination of a Division Bench of the Judicial Commissioner's Court in 1933. In case Emperor v. (Private) T. L. A. Johnson (A I R 1933 Pesh. 6), the Court found:‑
"A District Magistrate who passes sentence after receipt of the Jirga's finding acts as a Court in British India and when he punishes under some section which comes within Chapter 12 or Chapter 17, Penal Code, such punishment can be taken into consideration for purposes of section 75."
This judgment is based on the provision of section 6 of the Criminal Procedure Code. On these grounds, I am clear in my mind that the Deputy Commissioners, or the Commissioner, C acting under the F. C. R., are "Courts", but they are not "Judicial)
Courts" as specified in the Code of Criminal Procedure.
12. For the above reasons, I have no hesitation in answering the two questions referred to the Full Bench in the following manner:‑
(1) The Deputy Commissioner was competent to order the forfeitures of the surety‑bond, even if it was furnished in another Court, under the Criminal Procedure Code, by virtue of section 20, F. C. R.
(2) The Deputy Commissioner is also a "Court", though not as specified in section 6, but it is a "Court" under the F. C. R. (under a special law).
When Gul Miran absented himself from appearing before the Deputy Commissioner, the sureties had forfeited the bond, because of the specific term that they had not only undertaken to produce Gul Miran before the Magistrate, but also before "any other Court", to which the case was transferred, and the "other Courts" include the Court of the Deputy Commissioner under that F. C. R.
13. We are extremely grateful to Khan Abdul Latif Khan Advocate who served as amicus curiae in this case and gave us very valuable assistance. We are also grateful to S. Ghazanfar Ali Shah, Assistant Advocate‑General, who assisted us oil special invitation, besides Khan Sher Bahadur Khan, A. A. G., and Sayyed Masoom Shah Advocate, counsel for the petitioner.
14. There is no substance in the writ petition. It is dismissed. The petitioner to pay Rs. 300 as costs. Out of the costs if realised, Rs. 200 be paid to Khan Abdul Latif Khan, Advocate who assisted us as amicus curiae.
--‑I agree.
--I agree.
K. B. A. Petition dismissed.
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