Decided on May 22,1952

STATE Respondents

Referred Judgements :-



- (1.)THIS is a reference by the Sessions Judge, Jaipur District in a case under sec. 110 of the Criminal Procedure Code. Bhagirath (hereinafter to be referred to as the applicant) was bound down under sec. 110 of the Criminal Procedure Code by the Sub-Divisional Magistrate, Shahpura and was ordered to execute a bond with two sureties in the sum of Rs. 1000/- each and to execute a personal bond of Rs. 2000/-for being of good behaviour. The order was passed by the learned Magistrate on the 10th March, 1951
(2.)NO evidence was produced by the police and the applicant, when examined by the court, denied all the allegations made against him. Later on however, he said that he might be pardoned and he was prepared to furnish security as demanded by the court. The learned Magistrate taking it to be a plea of guilty bound down the applicant, and made the order given above.
The applicant went in revision to the court of Sessions Judge, Jaipur District who has made this reference recommending that the order of the Magistrate be set aside as it was not legal to bound the accused down simply on the statement that he had made without making any enquiry under sec. 117.

The applicant has not appeared. The learned Deputy Government Advocate who appeared for the State states that the order of the Magistrate was certainly erroneous as the statement of the applicant could not be treated as a plea of guilty under the circumstances of the case. There is a conflict of opinion in various High Courts as to whether in a case under sec. 110 of the Criminal Procedure Code the person against whom a notice is issued under sec. 112 can be bound down on his statement alone without any enquiry being made as contemplated by sec. 117. The High Court of Calcutta in a case reported in Superintendent and Remembrancer of Legal Affairs vs. Jiban Kumar De and others (1) (A I. R. 1936 Calcutta, p. 292.) held that - "an admission of guilt in proceedings under sec. 110, Criminal Procedure Code, or in proceedings of a more informal character does not amount to a formal plea of guilty. " The Lahore High Court in the ruling reported in Joti Malik vs. Emperor (2) (A. I. R. 1925 Lahore, p. 135.) held that - "in a case under sec. 107 consent to furnish security is no ground to order security. In the absence of evidence indicating apprehension of breach of the peace or of some act likely to cause breach of the peace on the part of the person concerned order passed is illegal. " In Prabhudas vs. Emperor (3) (AIR. 1920 Nagpur, 145.) it was held that - "a statement by a person in answer to a notice to show cause why security should not be taken from him, that he is not a quarrelsome person but is willing to give the security demanded would not justify an order requiring him to furnish security. " In Nasir Ahmed and others vs. King Emperor (4) (A. I. R. 1927 All. , p. 570) it was held that - "when an accused, called upon to give security for keeping the peace, says in terms that no prosecution evidence may be recorded and he is willing to give security, it is sufficient proof that it is necessary for keeping the peace that he should execute a bond. No further enquiry need be made by the Magistrate. " In a latter ruling of the same court reported in Emperor vs. Kurwa (5) it was held that - "whether the statement of the accused, "i am prepared to give security for good behaviour" is in effect equivalent to a plea of guilty, can be decided upon an examination of the particular facts. In one case an expression of readiness on the part of the accused to give security may fairly be construed as a plea of guilty; in other cases it could not possibly fairly be so construed. Where the man has already flatly denied his guilt on every point, then his statement: "i am prepared to give security for good behaviour" cannot be equivalent to a plea of guilty. " Under sec. 117 (2) of the Criminal Procedure Code, it has been provided that where the order requires security for good behaviour inquiry shall be made as nearly as may be practicable in the manner prescribed in the Criminal Procedure Code f&r conducting trials and recording evidence in warrant cases, except that no charge need be framed. Upon the language of the section it is doubtful if without making an inquiry a person can be ordered under sec. 110 simply on his statement that he was prepared to give security. However, I need not express any definite opinion on this point in this case, because even the Allahabad High Court which seems to have taken a view more adverse to the person from whom the security is required under sec. 110 of the Criminal Procedure Code than other High Courts has held in the case of Emperor vs. Kurwa (5) (A. I. R. 1926 All. , p. 357.) stated above, that where the person from whom the security is demanded flatly denies his guilt on every point then his statement that he was prepared to give security for good behaviour cannot be equivalent to a plea of guilty. In the present case, Bhagirath denied all the allegations made against him but in the end he showed preparedness to give security. This cannot be taken to be plea of guilty. The learned Magistrate's order cannot therefore, be justified.

There is no doubt that appeal lay against the order of the Magistrate to the Sessions Judge's court but no notice of this was taken in the Sessions Judge's court. However, as the order of the Magistrate is clearly illegal, I am not barred from making an order in revision setting aside the Magistrate's order.

Reference is accepted, the order of the Magistrate dated the 10th March, 1951 is set aside and Bhagirath is discharged. Personal and surety bonds are cancelled. .

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