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Gur Dayal Singh and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 63 of 1976
Judge
Reported in13(1976)DLT85; 1976RLR567
ActsCode of Criminal Procedure (CrPC) , 1898
AppellantGur Dayal Singh and ors.
RespondentThe State
Advocates: M.N. Madan and; D.R. Sethi, Advs
Excerpt:
.....-- whether court of session has jurisdiction, under section 123(2), to reduce amount of bond or number of sureties demanded under section 116(3) -- detention distinguished from imprisonment -- whither order under section 373 distinguishable from that under section 123(2) -- whether magistrates are best judges regarding bonds during pendency of enquiry.; during the pendency of proceedings against the petitioners under section 108 of the code of criminal procedure, they were directed to execute bonds. on their failure, they were detained in custody. their petition to the court of session, to reduce the amount of the bond and the number of sureties, was dismissed, for the reason that the court had no jurisdiction.; the petitioners contended that their detention in custody on failure to..........of law about the jurisdiction of the court of session to reduce the amount of the bond and the number of sureties asked for under section 116(3) of the code of criminal procedure, 1973 has been raised by the petitioners. (2) it is not necessary to give the facts in detail since these are not relevant to decide the question. suffice it to say that the petitioners were proceeded against under section 108 of the code of criminal procedure and the sub-divisional magistrate after giving them the requisite notice under section 111 of the code directed each one of them to execute a bond for rs. 5,000 with two sureties in the like amount during the pendency of the proceedings. they failed to produce the sureties and were consequently detained in custody. the petitioners approached the court.....
Judgment:

V.D. Misra, J.

(1) An important question of law about the jurisdiction of the Court of Session to reduce the amount of the bond and the number of sureties asked for under section 116(3) of the Code of Criminal Procedure, 1973 has been raised by the petitioners.

(2) It is not necessary to give the facts in detail since these are not relevant to decide the question. Suffice it to say that the petitioners were proceeded against under section 108 of the Code of Criminal Procedure and the Sub-Divisional Magistrate after giving them the requisite notice under section 111 of the Code directed each one of them to execute a bond for Rs. 5,000 with two sureties in the like amount during the pendency of the proceedings. They failed to produce the sureties and were consequently detained in custody. The petitioners approached the Court of Session for reducing the amount of the bond and the number of .sureties under section 123(2) of the Code. Mr. S. R. Goel, Additional Sessions Judge, held that he has no jurisdiction to reduce the amount of the bond and the number of sureties.

(3) Mr. M. N. Madan, learned counsel for the petitioners, submits that the Court of Session has the jurisdiction under section 123(2) of the Code and the learned Additional Sessions Judge was in error in holding otherwise. He contends that the detention of the petitioners in custody on their failure to furnish the sureties demanded under section 116(3) amounts to their being imprisoned for failing to give security in terms of section 123(2).

(4) I would like to examine various relevant sections of Chapter Viii before I discuss the contention raised by the petitioners. Chapter Viii of the Code relates to 'Security for keeping the peace and for good behavior'. It contains sections 106 to 124. These are preventive in nature. Section 106 empowers a Court of Session or a Court of the Magistrate of First Class to direct a person who has been convicted in respect of the offences mentioned in the section to execute a bond, with or without sureties, for keeping the peace. Sections 107 to 110 lay down the circumstances under which a Magistrate may direct a person to execute a bond with or without sureties for keeping the peace or for his good behavior. Before initiating proceedings under sections 107 to 110, the Magistrate is required to give a notice in terms of section 111. After the notice has been read and explained to a person in respect of whom proceedings under sections 107 to 110 are to be taken, the Magistrate is required to inquire into the truth of the information upon which action has been taken. (Section 116(1) of the Code) .Sub-section (3) of section 116 empowers the Magistrate to ask for the bond and the sureties. It is in the following terms :

'(3)After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behavior until the conclusion of the inquiry. and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded : Provided that-

(A)no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behavior;

(B)the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111.'

(5) Upon the conclusion of the inquiry' the Magistrate may ask for a bond, with or without sureties, under section 117 for keeping the peace or maintaining good behavior. Section 122 provides for the consequences of the failure of the person proceeded against to give a security ordered under section 106 or 117. The relevant part of this section may be noticed :

'122.(1)(a) If any person ordered, to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it.

(7)Imprisonment for failure to give security for keeping the peace shall be simple.

(8)Imprisonment for failure to give security for good behavior shall, where the proceedings have been taken under section 108, be simple, and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case directs.'

(6) Section 123 empowers the Chief Judicial Magistrate as well as the Court of Session and the High Court to make an order reducing the amount of the bond or the number of sureties or the time for which a security has been required. The relevant part of this section is as under:

'123.(1) Whenever the Chief Judicial Magistrate is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.

(2)Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other Court, the Chief Judicial Magistrate, may make an order reducing the amount of the security or the number of sureties or the time for which security has been required.'

(7) It may be noticed that the failure of the person to furnish the sureties demanded under section 116(3) results only in the detention of that person and not in his imprisonment, whereas the failure of a person to give security demanded under section 106 or 117 results in the person being committed to prison and to undergo simple or rigorous imprisonment in terms of sub-sections (7) and (8) of section 122. Mr. Madan contends that the words 'be committed to prison, or, if he is already in prison, be detained in prison' in clause (a) of sub-section (1) of section 122 cover the detention of a person for failure to furnish the sureties under section 116(3). I am afraid there is no warrant for this conclusion. This clause unambiguously refers to sections 106 and 117 only. An order under section 106 is passed as a consequence of the conviction of a person for one of the offences mentioned in that section. The conviction may lead to a punishment of imprisonment. An order under section 117 is not a consequence of any conviction. But the person may be undergoing imprisonment when order under section 117 is passed (section 119). Under section 122 if the person is not imprisoned already then he has to be committed to prison since he is required to undergo imprisonment either under sub-section (7) or sub-section (8). If he is already imprisoned, the period of his punishment under sub-section (7) or sub-section (8) is to commence after the expiry of his sentence in terms of section 119. Thus the Legislature while enacting clause (a) of section 122(1) had in view sections 106, 117, 119 and 122 only. It was thus necessary to use the said phraseology. The words 'be detained in prison' cannot, by any stretch of imagination refer to persons who are detained for their failure to furnish the bond arid the sureties as demanded under section 116(3).

(8) It is not correct to say that 'detention' means 'imprisonment'. The connotation of these words is well known to law. The word 'imprisonment' is always used in the sense of punishing a person, whereas 'detention' does not denote any punishment. The word 'detention' has been used not only under section 116(3) but also in various other sections of the Code. For example section 167 refers to the detention of a person in custody and the Magistrate authorising the detention of the accused. It is true that section 428 requires the period of detention undergone by an accused during the investigation, inquiry, or trial of the same case to be set off against the term of imprisonment imposed on him on conviction but that docs not mean that detention is imprisonment. On the other hand, the necessity to make a provision for setting off this period of detention arose because such detention could not be considered imprisonment.

(9) It may be observed that the word 'imprisonment' in connection with the failure to furnish the bond and the sureties is used for the first time in section 122. Mr. Madan contends that in case sub-section (2) of section 123 did not refer to a detention under section 116(3), the Legislature would not have used the words 'under this Chapter' but would have referred to 'section 106 or 117' as is done in section 122(1)(a). This cannot stand scrutiny even for a moment. It was not necessary for the Legislature to repeat the part of the sentence used in section 122(1)(a) because the word 'imprisonment' had come to denote the result of a person's failure to give security under section 106 or section 117. It will also be noticed that under section 116(3) the period for the bond unlike sections 106 and 117, is not to be specifically determined and the bond is to be asked for 'until the conclusion of the inquiry'. Now under sub-section (2) of section 123 the courts have been empowered to reduce 'the time' for which the security has been required. This can obviously be not done in respect of an order given under section 116(3).

(10) Another contention put forward by Mr. Madan is that since under section 373 a person can appeal against an order passed under section 117 to a Court of Session, there was no necessity for making another provision in the form of sub-section (2) of section 123 for the same purpose unless the object was to include an order under section 116(3). In my opinion the two sections can be easily distinguished. Under section 373 the order passed under section 117 can be wholly quashed which cannot be done under section 123(2). Though it is correct that the Court of Session while hearing the appeal under section 373 and exercising powers of the appellate court under section 386 may while upholding the order asking for the security reduce the amount of the security or the number of sureties or the time for which surety is being asked for, yet this overlapping is no reason to conclude that sub-section (2) of section 123 also relates to an order passed under section 116(3). Moreover, the power to reduce the security etc. has been conferred on the Chief Judicial Magistrate, the Court of Session as well as the High Court, whereas appellate powers are conferred only on the Court of Session. The difference between these powers is obvious.

(11) It may be remembered that Chapter Viii of the Code relates to preventive measures which the Magistrate may be required to take in order to prevent the breach of peace etc. It may be necessary to call upon a person proceeded against to furnish bond and the sureties undertaking to keep the peace or be of good behavior during 'the period the inquiry lasts. The scheme of section 116 shows that the inquiry is not to last indefinitely but has to be finished in a period of six months. Except for special reasons to be recorded in writing by the Magistrate, the inquiry automatically stands terminated after the lapse of six months. For this interim period the Magistrates are the best judges to decide about the amount of the bond and the number of sureties. The learned Additional Sessions Judge was, thereforee, correct in holding that he had no jurisdiction to reduce the amount of the bond and the number of sureties under section 123(2) of the Code.

(12) It is contended by Mr. Madan that if the Magistrate is the final judge of the amount of the bond and the number of sureties then he may ask for a bond of such an exorbitant amount and number of sureties which would not be possible for any one to furnish, and by this method the provisions of section 116(3) may be misused for detaining persons in custody. He refers to various decisions under the old Code to show that the Executive Magistrate had been misusing these provisions for detaining persons. He submits that these powers were taken away by the new Code from the Executive Magistrates and conferred on Judicial Magistrates for that very reason though in Delhi these powers have again come back to the Executive Magistrates. It is true that in the past some Executive Magistrates did misuse these provisions but there is no presumption that a Magistrate will not exercise his discretion according to the well-laid judicial principles and would act whimsically or capriciously. Proviso (b) to sub-section (3) of section 116 prohibits the Magistrate from making the conditions of the bond more onerous than section III. Moreover clause (b) of section 117 lays down that the amount of the bond shall not be excessive. It is true that this clause relates to a final order passed under section 117, but it should be kept in view while passing an order under section 116(3). Moreover the High Court has .the inherent jurisdiction to pass necessary orders to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can always be exercised by the High Court to correct the lower Courts in terms of section 482.

(13) In the circumstances of this case I find the ends of justice would be fully met if the number of sureties is reduced to one while maintaining the amount of bond for Rs. 5,000. Ordered accordingly.


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