' MALIK MUHAMMAD ASLAM KHAN, J.-This appeal has the following background. The appellant had stood surety for the accused Ahmad Khan (a case under F. E. R.) in an acquittal appeal before the High Court. The case was being heard by a Division Bench of the High Court, where accused Ahmad Khan jumped off the bail. Accordingly a notice was issued under section 514. Cr. P. C. To the surety (the present appellant) to show cause as to why the amount of surety bond (Rs, 10,000) should not be realised from him. It appears that on the date fixed for the appearance of the surety (13-1-1915), one of the Judges comprising the Division Bench was not present and, as such, the hearing was adjourned to another date. On the next date, the surety was not present and the learned Single Judge vide his order dated 16-2-1975 ordered that a warrant be issued for the realisation of the surety amount from the appellant.
' The appellant then moved an application under section 561-A, Cr. P. C. For review of the order dated 16-2-1975 but this application was dismissed by the learned Single Judge vide his order dated 30-5-1976. It is under these circumstances that a petition for leave to appeal was filed before this Court. The leave was granted to consider the legal effect of the order passed without serving further notice on the surety when the Presiding Officer was himself away from the headquarters on the date fixed for the hearing of the appellant.
2. 1 he learned Advocate-General has taken a preliminary objection to the effect that petition for leave to appeal was time-barred. In reply to this objection, the learned counsel for the appellant has stated that the impugned order was passed on 16.2-1975 and the Supreme Court Rules were issued on -7-1975. Thus according to him, there were no rules in existence concerning the period within which a petition for leave to appeal was to be presented at the time of passing of the impugned order. It was because of this, it is argued, that an application under section 561-A. Cr. P.
C. Was moved with the High Court on 25.5-1975 which was dismissed on 30-5-1976. Thus the period of Limitation it is contended, w 11 run from 30-5-1976 and as such petition for have to appeal having been filed within one month of 30.5-176, is well within time. It is also pointed out that when the order of realisation of the amount dated 16-2-1,75 was passed, although at that time the Judicial Board Act was in force in Azad Kashmir, the Judicial Board had not been constituted and therefore no appeal could be filed before the Judicial Board. It is also strenuously contended that the High Court fell in error in refusing to entertain application under section 561-A, Cr. P. C. On the wrong notion and that It had no power to do so. For this reliance has been placed on PLD 1970 SC 335, PLD 1974 Kar. 22, 1970 P Cr. L 1 412 to show that the High Court had the jurisdiction to recall the impugned order and that as it failed to exercise its jurisdiction, the order rejecting the review application under section 561-A, Cr. P. C. Was wrong.
' The Advocate-General, while not controverting this proposition, has contended that these authorities could apply only when it was found that the original impugned order for the realisation of the surety amount was illegal. As we find the original order passed by the learned Siagle Judge without competency, for reasons to be recorded hereinafter, there is much force in the contention that even if the petition for leave to appeal was time-barred, which it does not seem to be, the above-mentioned circumstances are sufficient to extend the period of limitation.
' We have given due consideration to the point of limitation raised by the learned Advocate- General and resisted by the learned counsel for the appellant. In view of the circumstance narrated above by the learned counsel for the appellant, we deem it a fit case to extand the period of limitation.
3. The learned Advocate-General has raised another preliminary objection to the effect that since the leave was granted to consider only the legal effect of the order passed without serving further notice on the surety, the point sought to be argued, that the learned Single Judge was not competent to pass the impugned order, cannot be, now raised in appeal. In reply, it is contended that the appeal in question involves the decision of a very important question of law concerning the competency of a Single Judge to pass the impugned order when the case was seized of by a Division Bench. The point of law of such a vital importance can be raised with the permission of the Court. For this proposition, PLD 1967 SC 241, PLD 1973 SC 469 and PLD 1957 SC (Pat.) 260, have been cited. No authority to the contrary has been cited by the learned Advocate General. The main question to be decided before this Court, as appears from the argument of the learned counsel for the appellant, is about the jurisdiction and the competency of a Single Judge passing orders like the impugned order when the bond was taken by the Division Bench in the acquittal appeal which itself was being B heard by the Division Bench. This is a very important question of law and as such, we allow it to be raised and argued although it was neither raised in the petition for leave to appeal nor the appeal was granted for its considers tion. There is no bar for bringing under discussion such vital questions of law affecting the very jurisdiction of the Judge who passed the impugned order.
We, therefore, allow this point to be raised and discussed before us.
4. The learned counsel for the appellant has advanced the plea that as the acquittal appeal was being beard by the Division Bench and the surety bond was also executed by the appellant and accepted by the Division Bench (as distinct from the Single Judge). The learned Single Judge, when sitting alone, could not be considered as 'the Court' as envisaged in section 514, Cr. P. C. The reply of the learned Advocate General is that the Single Judge being a part of the Court could legally perform, even alone, all the functions of the Court and is such, the impugned order passed by the Single Judge is well within the competency of the Single Judge and that this order will be deemed to have been passed by the Court itself. We are not impressed by this argument of the learned Advocate-General. The relevant provisions of section 514, Cr. P. C. May be reproduced for appreciating the point involved: "514. Procedure on forefeiture of bond.-(1) Whenever it is moved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of 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.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead."
' Plain reading of these provisions leaves no doubt that the word 'Court' occurring therein refers to the Court by which the bond was taken. Of course, if the bond was taken by a Court comprising a Single Judge, then the proceedings under section 514, Cr. P. C. Could be taken by the Single Judge but when the bond is taken by a Division Bench comprising two Judges, the Court would mean the Division Bench and not either of the two Judges constituting the Bench. Wood roffe on the Code of Criminal Procedure by Shaikh Abdul Halim, under the caption 'what Court can proceed under this section (section 514, Cr. P. C.) has commented as: "So far as bonds generally are concerned, action may be taken under this section by the Court by which the bond was taken.
' The expression "whenever it is proved to the satisfaction of the Court" and "that such bond has been forfeited, the Court shall record the grounds of such proof........." occurring in subsection (1) of section 514, Cr. P. C. Show that adjective "the" occurring before the term 'Court' in section 514, Cr. P.
C. Is intentionally used to denote that it is the Court which is seized of the case that can initiate proceedings under section 514, Cr. P. C. Prefix `the' occurring before 'Court is a definite article to denote a particular Court and not the single Member of the Court when it consists of two or more Judges. In Stroud's Judicial Dictionary (Fourth Edition), page 633(5) a case of Baker v. Oakes (1) has been referred wherein it was observed that: "A power appertaining to the High Court and which is exerciseable only by 'the Court', must be exercised by the Court in banc, and not by a Judge at chambers."
' In view of this legal position, we are of the view that the expression 'the Court' occurring in section 514, Cr. P. C. When the bond was taken by the Court for appearance of an accused before it, means the Court before which the proceedings had been taken. If such Court comprises of a Single Judge then such proceedings could be taken by the Single Judge but if it comprises two or more Judges then the proceedings can be taken by the Court comprising both Judges and not by a Single Judge sitting in his chamber. In the present case, it is not disputed that the Division Bench comprising two Judges was hearing the acquittal appeal before which the surety bond for appearance of the accused had been executed by the appellant. The Court in this case, therefore, would mean the Division Bench and not the learned Single Judge.,, For that reason, we find that the order passed by the learned Single Judge is without jurisdiction and not supportable in law. The appeal is, therefore, accepted, the order under appeal is set aside and the case remanded for its rebating by the Court and passing proper order in accordance with law. The appellant will appear before the High Court on 14-848.
(1) 2 Q B D 171 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.