Kunhi Raman, C.J.
1. Criminal E.P. No. 302/ 1124 is brought on behalf of the State. The learned Public Prosecutor who appears for the State contends that the order made by the learned Sessions Judge of Nagercoil in Criminal M.P. No 115/1124 on the file of his Court was passed without jurisdiction. To appreciate this contention, it is necessary to set forth some of the salient facts briefly. The respondent is described as the Secretary of the South Travancore Salt Factory 'Workers' Union. Proceedings were initiated against him under Section 104, Travancore Code of Criminal Procedure, He was made to execute an interim bond on 30.5.1124, pending disposal of the case against him. Before the case was disposed of, it was alleged that he had violated some of the conditions of the bond, and thereupon on 28.6.1124 the Police Inspector of the locality moved the Magistrate who had taken the bond, for cancellation of that bond. On 5.7.1124, after examining the Inspector of Police who made the application, the Magistrate directed the cancellation of the bond and remanded the counter-petitioner to custody. Then the counter petitioner moved the Sessions Court of Nagercoil for bail and he succeeded in obtaining an order in his favour. It is alleged in this petition that the Sessions Court had no jurisdiction to pass an order under Section 427, Travancore Code of Criminal Procedure.
2. The argument of the learned Public Prosecutor is that the order passed by the Magistrate must be deemed to be one made under Section 113, Clause 3, Travancore Code of Criminal Procedure and when such an order has been passed it is contended that the Sessions Court has jurisdiction to entertain an application for bail and to grant it as the Court has done in the present case. This contention cannot be accepted in view of the provisions of Section 409, Travancore Code of Criminal Procedure. The first part of the section deals with the amount of the bond executed under the chapter in which the section is to be found. The second part of the section which is the relevant portion for the purpose of this case reads as follows:
And the High Court or Court of Session may, in any case whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced.
This part of Section 409, confers an absolute power on the High Court and the Court of Session to admit persons on bail whether they have preferred appeals or not. This section corresponds to Section 498 of the Indian Coda of Criminal Procedure. The scope of the Section was dealt with in the case reported in Emperor v. Masuria AIR (23) 1936 ALL 107 : 58 ALL 589. The learned Judges (Salaiman, C.J. and Bennet, J.) had to consider whether bail which was granted by a Sessions Judge to a person who had not been convicted of an offence but who was still detained in jail was validly granted. In answering this question in the affirmative the learned Judges stated as follows:
The Legislature has obviously intended to confer upon the High Court and a Court of Session very wide powers to admit to bail any person who is detained in jail, no matter whether ho is a convicted person or not, and no matter whether he has appealed from conviction for an offence or has preferred any other appeal allowed by the Code, and even where there is no appeal pending. There is no reason for limiting the scope of the section so as to narrow it down to oases where persons have been convicted of offences and have preferred appeals under Section 407 and the following sections. We must, therefore, hold that the learned Sessions Judge had power under Section 498 to admit M. to bail.
With great respect we are in complete agreement with the view expressed in this judgment regarding the scope of Section 498 of the Indian Coda of Criminal Procedure which is similar in wording to Section 403, second part of the Travancore Code of Criminal Procedure. The learned Public Prosecutor then referred to Section 407 according to which nothing contained in Section 407 shall be deemed to affect the provisions of Section 113, Sub-section 3. This does not in any way control the absolute power vested in the High Court and the Court of Session under Section 409 of the Code. The proviso adverted to deals with the power of a Court when a person appears or is brought before it and is prepared at any time to give bail. Where the offence is a non-bailable offence, the proviso can certainly not control the provisions of Section 409. In the circumstances we cannot accept the contention of the learned Public Prosecutor that in the present case the Sessions Judge had no jurisdiction to enlarge the petitioner on bail on his application presented to the Sessions Court.
Coming now to the merits of the order, we must express our opinion that since the Magistrate is responsible for the maintenance of public peace within his jurisdiction, when he has made an interim order against a person committed by him to custody on the ground that such an order is necessary for preserving the public peace, it should not be lightly interfered with by a higher authority like the Court of Session. No doubt, if there is anything irregular or illegal in the order it is the bounden duty of the Sessions Court to give relief to a private citizen who is injuriously affected by the order. We are not prepared to say that in the present case the learned Sessions Judge has acted in the arbitrary exercise of his discretion in granting bail. It is apparent from the order made by him that he has considered the various aspects of the case and he has understood the position to be that the Magistrate has not yet passed an order under Section 113, Sub-section 3 of the Travancore Code of Criminal Procedure. Indeed towards the end of the order he directs the Magistrate to expedite the action to be taken on the report of the Police Inspector and to pass an order under Section 113, Clause 3, if the Magistrate deems it necessary to do so. It is pending the passing of such an order that he has directed that the counter petitioner should be enlarged on bail. The records will, therefore, be sect back to the Magistrate in order that he may deal with the case expeditiously under Section 113 Clause 3. It is unfortunate that this matter has been left pending now for nearly two years and when dealing with the case the Magistrate will take into consideration whether there is really any apprehension that a breach of peace will be committed if the counter petitioner is not remanded to custody. There will be an order in these terms.
3. Criminal R.P. No. 277/1124 is presented on behalf of the respondent in Criminal R.P. Ho. 302/1124. Exception is taken to the order of the Magistrate cancelling the interim security bond executed by the petitioner in this matter which has already been adverted to in the order which we have just pronounced in Criminal R.P. No. 302/1124. We have already expressed our views in the order in Criminal R.P. No. 302/1124 and we feel no doubt that the Magistrate will bear in mind the point that we have stressed in that order, that is to say, that he will consider whether there is any longer any apprehension of a breach of the peace taking place. Moreover, id is alleged that the since a period of two years has elapsed from the date of the order the proceedings themselves might have become infructuous in view of the fact that security can be taken under Section 103 only for a year. This point also will be considered by the Magistrate in deciding whether the case should be struck off his file and liberty given to the police, if so advised, to initiate fresh proceedings if the circumstances warrant the same.