1. There is no doubt that the order passed by the Special Magistrate, First Class, Malegaon (Budruk), is premature as ruled in Emperor v. Rangya (1902) 4 Bom. L.R. 934. On the other hand, Section 123, Sub-section (1), Criminal Procedure Code, itself directs that, if any person ordered to give security under Section 106 or Section 118 does not give such security, on or before the date on which the period for which such security is to be given commences, he shall, if already in prison, be detained in prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it. Therefore, strictly speaking, no further order is required except on the point whether the imprisonment on failure to furnish security should be rigorous or simple, and on any questions that may arise as to the security tendered.
2. We agree generally with the views expressed by the Remembrancer of Legal Affairs in Government Resolution No. 8524, dated December 21, 1925, Judicial Department, They are supported by the decision of the Burma Full Bench in Emperor v. the Hlaing (1907) CrI. L.J. 472. Accordingly, we quash the Magistrate's order of May 3, 1926, as being premature. His proper course would have been to adjourn the case till after the sentence the accused was undergoing had expired, for further orders. But he should at the same time have communicated his order of May 8, 1926, requiring the prisoner to furnish security, to the jail authorities and asked them to detain the prisoner in jail upon the expiration of the sentence in accordance with Section 123, Sub-section (1).
3. We substitute an order that the Magistrate should now ascertain when the prisoner's sentence will expire, and fix a date accordingly for further proceedings under Section 123 before him. The accused should be given all proper facilities for furnishing the required security, but need not be produced before the Magistrate, if he informs the jail authorities that he is unable to give the security.