(1) Santokh Singh respondent on 1-7-1958, stood surety in the sum of Rs. 1,000/- for the due appearance of one Tikka Ram son of Bua Nandan who was a respondent in the case under Ss. 107/151, Criminal Procedure Code, pending in the Court of Shri Hari Singh Mumtaz, Magistrate, 1st Class, Jullundur. Tikka Ram failed to appear in the Court and the surety in spite of being granted an opportunity to produce him failed to do so. The Magistrate, therefore, took proceedings against Santokh Singh surety under S. 514 of the Criminal Procedure Code and ordered the forfeiture of the full amount to the bond, i.e. Rs. 1,000/-.
In appeal under S. 515, Criminal Procedure Code, the Additional District Magistrate felt that S. 496, Criminal Procedure Code, was inapplicable to proceedings under S. 107, Criminal Procedure Code, because the respondent in such a case cannot be said to be an accused and that consequently no bail can be taken under S. 496 for the appearance of a person who is summoned by a Magistrate before him under S. 107, Criminal Procedure Code, and for these reasons, he accepted the appeal and set aside the order of forfeiture of the surety bond. State has come up in revision.
(2) The argument of the learned counsel appearing of the State was that S. 496, Criminal Procedure Code, is not confined merely to an accused person. The relevant portion of the section runs as follows :
'When any person other than a person accused of a non-bailable offence is arrested * * * or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail such person shall be released on bail.' * * * *'
Thus the substantive portion of S. 496 applies to all persons except those accused of non-bailable offences. Furthermore, the provisions of this section are applicable not only to persons who are arrested or detained by an officer in charge of a police station, but also to persons who appear or are otherwise brought before a Court. Thus, there can be no manner of doubt that the learned Additional District Magistrate was wrong in holding that S. 496 applies only to an accused person. By the words 'other than a person accused of a non-bailable offence' only this category of persons is excluded, but this does not impliedly mean that the persons covered by the section must be accused of some offence. The proviso to this section makes it clear that the substance portion of the section applies also to the proceedings under S. 107. It runs as follows :
'Provided, further, that nothing in this section shall be deemed to affect the provisions of S. 107, sub-s. (4), or S. 117, sub-s (3).'
Sub-section (4) of S. 107 is to the following effect :
'A magistrate before whom a person is sent under sub-section (3) may in his discretion detain such person in custody pending further action by himself under this Chapter.'
If proviso to S. 496 did not exist, it could have been argued that a person who is being produced before such a Magistrate is entitled to be released on bail as a matter of right because of the provisions contained in S. 496. The proviso, therefore, excludes the operation of the substantive part of section 496 and empowers the Magistrate in his discretion to detain a person who is sent to him under sub-section (3) of S. 107 by a Magistrate not empowered to proceed under sub-section (1) of that section. If the provisions of S. 496 were altogether inapplicable to the proceedings under S. 107 of the Criminal Procedure Code, there was no meaning in saving the provisions of sub-section (4) of S. 107 by the proviso aforesaid. I am supported in this view by a judgment of the Rangoon High Court in U Gandama v. Emperor, 34 Cr LJ 950 : (AIR 1933 Rang 164), which was followed in Emperor v. Karbalai, AIR 1940 Nag 75.
(3) The learned counsel appearing for the respondent could not cite any authority to the contrary or advance any reasons in support of the view taken by the learned Additional District Magistrate.
(4) For the reasons given above, therefore, I feel that the order of the learned Additional District Magistrate is incorrect and I set aside the same, and direct that the appeal originally filed by Santokh Singh be heard by the District Magistrate who will decide the same on merits.
(5) Appeal remanded.