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Emperor Vs. Aba Farid Bargir - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 78 of 1926
Judge
Reported in(1927)29BOMLR700; 103Ind.Cas.108
AppellantEmperor
RespondentAba Farid Bargir
Excerpt:
.....accused was called upon, on october 20, 1920, to furnish security under section 118 of the criminal procedure code; and on failure to furnish it, he was ordered, on october 29, 1920, under section 123 of the code, to be detained in prison for a period of one year. between october 20 and 29, however, the accused was sentenced to suffer rigorous imprisonment for seven years, for an offence under the indian penal code. on the expiration of this sentence, a question arose whether the accused was entitled to he set at liberty :-;that the accused was entitled to be released from prison, for the order under section 123 had commenced to run from october 20, 1920, by virtue of section 120(2) of the criminal procedure code 1898. - - shah, j 1. in this case the order under section 118,..........with this expression of opinion.fawcett, j2. i agree. i would add that the new proviso inserted in section 397 in 1923 favours this construction, as is pointed out in sohoni's code of criminal procedure, edn. 1924, pp. 838 and 839.
Judgment:

Shah, J

1. In this case the order under Section 118, Criminal Procedure Code, was made on October 20, 1920, and the order of imprisonment for one year in consequence of the failure of the accused to give security in pursuance of the order under Section 118 of the Code was made under Section 123, Criminal Procedure Code, on October 29. But between October 20 and 29 the accused was convicted and sentenced to seven years' rigorous imprisonment and that sentence commenced between these two dates. Under Section 120, Sub-section (2), Criminal Procedure Code, the period of the order requiring the accused to give security commenced on October 20; and, if the proper procedure had been followed, the learned Magistrate in this case should not have made any order under Section 123, Criminal Procedure Code, of imprisonment at all at that stage. But in fact he made the order under Section 123, Criminal Procedure Code, on October 29. As the period in respect of which the order under Section 118 was made has now expired and the period of imprisonment under Section 123, Criminal Procedure Code, has also expired, it is clear that the accused is entitled to be set at liberty, as we are informed that the period of his substantive imprisonment is over. It is not necessary to quash the order, as it is now spent. The papers to be returned to the District Magistrate with this expression of opinion.

Fawcett, J

2. I agree. I would add that the new proviso inserted in Section 397 in 1923 favours this construction, as is pointed out in Sohoni's Code of Criminal Procedure, Edn. 1924, pp. 838 and 839.


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