VAREED Vs. STATE
LAWS(KER)-1955-7-6
HIGH COURT OF KERALA
Decided on July 22,1955

VAREED Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) The counter petitioner in M.C. 2 of 1955 on the file of the First Class Magistrates Court at Chalakudi, has filed this petition under Art.227 of the Constitution. The petitioner invokes the supervisory jurisdiction of this court and to quash the proceedings passed against him by the Magistrate on the ground that the Magistrate has acted illegally and without the due exercise of the jurisdiction vested in him under law. The proceedings were initiated by the Magistrate against the petitioner under S. 110 of the Code of Crl. Procedure. The preliminary order was passed on 11.3.55. That order did not indicate the necessity of taking an interim bond from the present petitioner. But on the same day the Sub-Inspector of Police presented a report stating that for avoiding a breach of the peace, it is necessary to take an interim bond from the petitioner. The sworn statement of the Inspector was also recorded and on the back of the report the Magistrate passed an order in the following words:- Counter petitioner has been directed to execute an interim bond. This order is dated 11.3.55. But it is conceded that no order as indicated in that order had been passed by the Magistrate on 11.3.55 or earlier. In fact from the records produced before us and which have been marked as Exts. A to E, it is clear that the Magistrate has not passed an order under Clause.(3) of S. 117 of the Code, directing the execution of an interim bond by the petitioner. Such an order could be passed only after the petitioner had appeared before court or had been brought before court when only could it be said that proceedings against him had actually commenced. On 12.3.55 the petitioner appeared and applied to be released on bail. This appearance was in pursuance of a warrant which had been issued to him under S. 114. In the order granting the bail to the petitioner the Magistrate went one step further and directed the petitioner to execute interim bond under S.117(3). This was clearly illegal and the procedure adopted was highly irregular. The position taken up by the State that this could be treated as a proper order under that section cannot stand. The order under Clause.3 of S. 117 is a judicial order to be passed by the Magistrate as required by that section and it is not enough, if the direction to execute an interim bond is made part of the order granting bail to the petitioner. For another reason also that order is bad in law. The Magistrate has not recorded in writing his reasons in support of the direction that the petitioner should execute an interim bond. He has briefly mentioned certain facts which had already happened, viz., that he had already issued a warrant under S. 114 and that the Sub Inspector had filed a report giving his reasons why an interim bond should be taken from the petitioner. But strangely enough the Magistrate has not stated that he has been satisfied that a case is made out for ordering an interim bond. It is obvious that the Magistrate has failed to consider the matter judicially and also to follow the procedure prescribed by the Code, for dealing with such matters. Thus in any view of the matter the proceedings under which the petitioner has been made to execute interim bond have to be characterised as illegal, irregular and also as opposed to the procedure prescribed by the Code of Crl. Procedure.
(2.) In the result this petition is allowed and the proceedings complained of are quashed and the Magistrate is directed to proceed in accordance with law and according to procedure prescribed by the Code of Crl. Procedure.;


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