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Nasir Ahmad and ors. Vs. King-emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1927All579
AppellantNasir Ahmad and ors.
RespondentKing-emperor
Excerpt:
- - i fail to see what further inquiry was possible. 176 gave it as his opinion that the better procedure would be to record evidence for the prosecution in a case like that......appealed the learned sessions judge referred only to the accused's offer to give security, and the learned judge of this court very rightly criticised this procedure of the sessions judge and referred the case back to him to decide on the merits whether the applicant was a bad character or not with all respect, it may be submitted that the general observations of the learned judge on page 318 of the report are possibly a little too wide. the learned judge is reported to have said:in cases arising under section 107, criminal procedure-code, it has been held times without number that the magistrate should hold an independent inquiry and should not act on the mere readiness of the accused to furnish security.7. i have already noticed two of the cases cited by the learned judge. the third.....
Judgment:

Dalal, J.

1. Abdul Rauf and certain other persona have applied in revision for the setting aside of two orders under Section 118 of the Code of Criminal Procedure, that they should furnish security to keep the peace. What happened was that upon a report of the police the Magistrate, on that information, issued 'notices to these persons to show cause why they should not be ordered to execute bonds without sureties for keeping the peace for a certain period. On the 28th of October, Abdul Rauf appeared in the Court of the Magistrate and stated' 'machalka dena chahta hun,' i.e., he is desirous of giving a bond. The Court thereupon ordered that if he was so desirous should file the bond; and on the 29th of October he filed the bond. On the 12th of November, the other applicants desired that they should be permitted to enter into personal bonds. They made this statement, as is apparent from the record, after the Court had written the words 'P.W.1,' presumably in preparation of recording the statement of the first prosecution witness.

2. As these applicants expressed their willingness to enter into personal bonds no evidence was recorded; they were allowed to enter into personal bonds for keeping the peace for one year on the same day, the 12th of November 1926. The appeals of these applicants to the Sessions Judge were dismissed, and they have now come here in revision; The learned Counsel, who put before me all the case law on the subject, argued that under Section 118, an order to execute a bond may be passed only, when upon enquiry it is proved that it is necessary for keeping the peace that the person in respect of whom the inquiry is made shall execute a bond. The enquiry ordered under Section 118 is 'such inquiry' a repetition of the words used in Section 117(2), Such inquiry, according to Section 117(2), shall be made, as nearly as may be practicable where the order requires security for keeping the peace in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases.

3. The procedure as to the trial of summons-cases is laid down in Chapter XX of the Code of Criminal Procedure. Under Section 242, when the accused appears, the Magistrate has to tell him the particulars of the ''offence of which be is accused and ask if he has any cause to show why he should not be convicted. All this was done in the present case by the issue of the notice to Abdul Rauf, and in the case of the others, when they appeared before the Court, and the Court made preparation for recording the evidence for the prosecution. Then, under Section 243, if the accused admits that he his committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. In the present case statements of, the applicants were recorded as far as possible in their own words. In one case, on the order sheet, and in the other case, by the Magistrate himself on 12th of November. The note of the Magistrate is: 'At this stage the accused' (that is those other than Abdul Rauf)

pray that they may be allowed to enter into personal bonds for Rs. 500 each without sureties, for keeping the peace for a period of one year.

4. It was argued that this is not an admission that they were ready to commit a breach of the peace.

5. 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. It should not be forgotten that the Magistrate had previous information on which he issued notice under Section 107, and the willingness of the accused himself to give a bond substantiated that information and proved its truth. If the accused did not admit the danger there was as to his breaking the peace, he need not have spoken words which convey that impression to any ordinary reasonable being. In the present case, in my opinion, there was a full inquiry, as laid down in Section 117(2) of the Code in the manner directed in Chap. XX of the Code. I fail to see what further inquiry was possible. Personally I should consider a Magistrate exceedingly foolish if, in spite of the person, to whom the notice was issued, expressing his willingness to enter into a bond, he went on recording prosecution evidence which was not likely to favour the accused, From the attitude taken up by the accused it was certain that he would not cross-examine the prosecution witnesses. It would be reducing proceedings to a farce to insist upon a Magistrate to go on recording prosecution evidence solemnly when the accused person took no interest in it and was ready to admit its truthfulness.

6. As regards the case-law on the subject the only case of this Court, which supports the argument put forward by the learned Counsel, is that of Chander Sekhar v. Emperor [1920] 21 Cr. L.J. 59. As it is not reported in any of the two recognized law journals of this Court, namely the Allahabad Law. Reports and Allahabad Law Journal, I do not feel myself bound to follow it, particularly when, in Ghariba v. Emperor [1920] 21 Cr. L.J. 59, Mr. Justice Walsh, in delivering judgment, dissenting from this case noted that he had consulted Mr. Justice Ryves who delivered the judgment in Chander Sekhar's case [1920] 21 Cr. L.J. 59, and that Mr. Justice Ryves had then agreed with his view Mr. Justice Walsh, in the judgment he delivered in the case of Jagdat Tewari v. Emperor [1920] 21 Cr. L.J. 176 gave it as his opinion that the better procedure would be to record evidence for the prosecution in a case like that. He did not lay down any definite rule on the subject, and did not hold that it would be illegal not to record such evidence. He appears to have modified his view subsequently, when he delivered his judgment in the case of Ghariba v. Emperor A.I.R. 1924 All. 269. The facts of the case of Ram Charan v. Emperor : AIR1926All614 ., were different. There, in a trial upon a notice to bind over for good behaviour, where the procedure applicable would be that of a warrant case, the Magistrate, who directed that security should be taken, did not act on any plea of guilty, but held a full inquiry and formed his opinion of the accused person's bad character on the basis of that inquiry and when the convicted person appealed the learned Sessions Judge referred only to the accused's offer to give security, and the learned Judge of this Court very rightly criticised this procedure of the Sessions Judge and referred the case back to him to decide on the merits whether the applicant was a bad character or not With all respect, it may be submitted that the general observations of the learned Judge on page 318 of the report are possibly a little too wide. The learned Judge is reported to have said:

In cases arising under Section 107, Criminal Procedure-Code, it has been held times without number that the Magistrate should hold an independent inquiry and should not act on the mere readiness of the accused to furnish security.

7. I have already noticed two of the cases cited by the learned Judge. The third case cited was that of Emperor v. Mul Chand [1915] 37 All. 30, decided by a Judge of considerable reputation of this Court. The facts in Mul Chand's case were not in conformity with the facts of the present case. There Mul Chand did not admit that he was a person likely to commit a breach of the peace, but rather put in a long statement alleging the contrary. What he admitted in the statement was only enmity, and from that statement the Magistrate was not justified in presuming that Mul Chand was likely to commit a breach of the peace. The learned Judge, as was to be expected from him, if I may say so with respect, has made reference to Section 242 of the Code of Criminal Procedure, and it is obvious that he would not have ordered further inquiry if he had accepted Mul Chand's statement as an offer to give security for keeping the peace. The point of difference between this judgment and the judgments of the other Courts quoted by the learned Counsel is that in the other judgments reference to Chap. XX of the Code is entirely omitted. The case of Prathipati Venkatsami v. Emperor [1907] 30 Mad. 330 of the Madras High Court is somewhat different, as there was no statement of the accused, but only a statement of his vakil. The Calcutta and the Punjab cases, however, fully support the contention of the learned Counsel. They are Ram Chandra Haldar v. Emperor [1908] 35 Cal. 674 and Prem Singh v. Emperor [1917] 27 P.R. Cr. 1917. In neither of these cases the point appears to have been noted that the inquiry referred to in Section 118 is one laid down in Section 117(2), and is similar to that detailed in Chap. XX for summons cases. When there is such a glaring omission in the discussion of the question, I think it will not be presumptuous for me to differ from those rulings.

8. I would ordinarily have referred this matter to a Bench of two Judges, but refrain from doing so in this case because even if I had accepted the learned, counsel's view of law. I would not have interfered It is obvious to me that the applicants are playing the Court a trick. They and the members of the opposite faction have all been bound over. In order that the trial Court may obtain bonds from the members of the opposite faction, they were ready to offer themselves to be bound over but now after bonds were taken from the members of the opposite party and those persons did not appeal they seek to take an advantage by discovering a flaw in the procedure of the Magistrate. Whatever the law on any matter may be, I shall never be induced to grant relief to any person whom I suspect of an attempt to cheat a Court.

9. I dismiss these applications.


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