1. The applicants geek to revise the order dated 4.10.1951 of the Sub-Divisional Magistrate Ashta, ordering them to furnish security for Rs. 1,000 each for keeping peace for a period of three months. Their appeal against the order is dismissed.
2. The facts of the ease are stated in the orders of both the lower Courts and need not be repeated. The points pressed in this Court are: (i) that the original and appellate Courts misunderstood that by the statements of the applicants, in reply to the preliminary order and the notice, they had consented to furnish the security and it is urged that they agreed to furnish the security only for bail during the proceedings; (ii) that they had denied the allegations against them and there was no evidence on record to justify the order.
3. The preliminary order or notice dated 4.10.1951 clearly indicates that according to the Magistrate, the applicants were feared to commit breach of peace at the time of approaching Moharram and Desbra holidays simply because they had1 filed an application to the police that the feelings of the Muslims were injured by the passing of the procession in celebration of the Mahatma Gandhi Jayanti alongside the mosque. To this the applicants replied that they had signed the application prepared by one Kallu Master who told them that it was against the new road by which the procession had passed. They added that they wore not even present at the mosque at the time and lastly that they were prepared to furnish security. One of them stated that he was willing to furnish a bond as desired by the Police.
4. The applicants, it must be remembered, were no doubt taken to the Court in custody on that date but it does not appear that the contention, that they offered to furnish security only for being released on bail during the proceedings, is correct. Their statements were in reply to what was read out to them from the preliminary order. They denied the allegations and even explained why they had signed the application filed to the Police. Naturally, however, they wanted to be released from custody and therefore, offered to furnish security. This is further supported by the fact that Applicant No. 8 Akbar Ali specifically stated that he would furnish a bond as desired by the Police.
5. It seems, however, equally clear from the orders of both the Courts below that they considered that the applicants had pleaded guilty, to what amounted to a charge against them, because they consented to furnish the security. They have not considered the denial of the allegations by the applicants. As such it has to be pointed that the Courts could not act on the plea construing it to be one of guilty and in my opinion, could not even consider it as anything beyond a denial of the charge.
6. The Magistrate appears to be in two minds on the consent of the applicants. He seems to have considered that it was a plea of guilty but yet went on to record evidence. The proceedings under Section 107, Criminal P.C., are, under the law, conducted by the procedure for the trial of a summons case, but if the Magistrate had accepted the consent as a plea of guilty or admission, he could have proceeded under Section 243, Criminal P.C., and the fact, that he did not do so, indicated that he was not satisfied with the plea. But when that was so, he seems to have based his order more on the more willingness of the applicants to offer security than the evidence as is found in the last para of his order. It is, therefore, that the order was illegal and improper and cannot be sustained.
7. Most of the High Courts have pointed out that the mere consent or willingness to furnish security does not amount to a plea of guilty, as found in Ram Chandra Haldar v. Emperor 35 Cal. 674 Superintendent and Remembrancer of Legal Affairs Bengal v. Jiban Kumar De A.I.R. 1936 Cal. 292, Ujagar Singh v. Emperor A.I.R. 1929 Lah. 504, Prathipati Venkatasami v. Emperor 30 Mad. 330, Emperor v. Rai Singh A.I.R. 1918 Nag. 140 and Prabhudas v. Emperor A.I.R. 1920 Nag. 145.
8. The Allahabad High Court, in Emperor v. Kurwa A.I.R. 1928 All. 357, has held that: 'Whether the willingness amounts to such plea depends upon the facts and circumstances of each case.' In that case the person proceeded against denied the allegations and yet offered to furnish security and it was held that 'it did not amount to a plea of guilty.' I respectfully agree with this view and find that the readiness of the applicants, to furnish security in the case on hand, cannot be construed as a plea of guilty and could not be acted upon.
9. Turning to the evidence on record it is clear that the witness Sub-Inspector of Police was not present with the procession and thus could not state anything regarding what happened near the mosque. In fact the apprehension of the commission of the breach of peace appears to have been based on the fact that the applicants were parties to an application filed to the Police as found in Ex. P.3. The witness stated that the statements in the application were found to be incorrect and therefore, he concluded that the applicants might commit breach of peace at the time of the Moharram and Deshra holidays which were about a week ahead. I am clear that there was absolutely nothing as required by law on which such an apprehension could be justified. The very proceedings were, therefore, unjustified and much more so the order. Apart from this I cannot close this order without observing that even if the order, calling upon the applicants to furnish security for keeping peace, was entitled to be upheld still the amount of security called for was unreasonably high considering the status of the applicants. As the order, however, cannot be sustained it is not necessary to pursue the matter.
10. It is ordered that the revision is allowed; and the order of the Sub-Divisional Magistrate, Ashta, dated 4.10.1951, calling upon the applicants to furnish security to keep peace, is set aside and the bonds executed in that behalf are discharged.