1. In this case the applicant has been required to give security for good behaviour by an order made under Section 118 of the Criminal Procedure Code. He has been required to give his own recognizance for Rs. 10,000, and one surety for Rs. 5,000. He has been unable to provide the surety. He appealed to the District Magistrate against the order who dismissed the appeal, and now he has applied to us in revision.
2. A good many points of some nicety have arisen in the course of the argument. The net result is, however, that, in my opinion, the order must be set aside, because I think the applicant has not had a fair trial. I use the word trial although perhaps it is not technically the correct word to apply to proceedings under Chapter VIII of the Criminal Procedure Code. The reason why I think he did not have a fair trial is this : He was arrested under the provisions of Section 55 of the Criminal Procedure Code, was taken before a Magistrate, and a complaint was presented by a police officer to the Magistrate demanding that security for good behaviour should be taken from him. So far the proceedings apparently were perfectly regular, But the applicant was then told that he would be admitted to bail only if he furnished his own recognizance for Rs. 10,000 and a surety for the same amount, these being the particular sums which were stated in the order made under, Section 112. Now it may be perfectly right to require security of that kind for future good behaviour from a person who is proved to be, or proved to be reputed to be, by habit a robber or receiver of stolen property and so forth. That is one thing, but it is quite a different thing when you have to consider what security a man should give for his appearance before the Magistrate during the progress of the inquiry which is to determine whether he is or is not such a person or reputed to be such a person. Having fixed this large security of Rs. 10,000, as the proper amount under Section 112, it seems to me that when the Magistrate decided that he would only admit the applicant to bail during the inquiry on a surety for that same large amount, he was in fact, as the events proved, compelling this man by force of circumstances to remain in custody during the enquiry. After events showed that the applicant here was able to give very substantial security for his appearance, because he applied to the Sessions Judge, and the Sessions Judge modified the order and directed that he should be admitted to bail with a surety for Rs. 2,000, and this, after some time, the applicant was able to furnish. It is the intention of the law as I understand it that when a man is arrested, as this man was, who is not accused of a non-bailable offence, no needless impediments should be placed in the way of his being admitted to bail. The intention of the law undoubtedly, as I understand it, is that in such cases the man is ordinarily to be at liberty, and it is only if he is unable to furnish such moderate security, if any is required of him, as is suitable for the purpose of securing his appearance before a Court pending inquiry, that he should remain in detention. And that is I believe the almost universal application of the law on this point. Therefore I think that to require this security for Rs. 10,000, merely in order to ensure that this man should be present during the inquiry was an oppressive act which resulted in this: that the man was in custody, under detention, during the more important part of the inquiry when he ought to have been at large. This seems to me to constitute an unfair trial. In this case therefore the applicant has not had a fair trial, and I think the order made against him ought to be set aside.
3. A very interesting point arose in the course of the argument, and it was as to whether the Magistrate had power to order detention at all in the case of this applicant. The question may be stated thus: whether, the applicant having been arrested as he was and being brought before the Magistrate for the purpose for which he was brought, that Magistrate had power to direct his detention if he failed to give bail; or whether the Magistrate was not bound forthwith to release him and treat him as a person who is merely required to attend the proceedings, that is to say, to treat him as a person on whom a summons has been issued. In the view I take of the matter it is unnecessary to decide this interesting and, it may be, somewhat difficult, point, and therefore I express no opinion whatever on that point.
4. I am of the same opinion.