1. In this case one Umda Khanum has been required to give rupees one thousand as recognizance and two sureties in rupees five hundred each to keep the peace for the term of one year, and one Bahadoor Lall has been required to give rupees two hundred as recognizance and two sureties in rupees one hundred each to keep the peace for the same term.
2. The Sessions Judge of Gya has referred the case to this Court to have the order quashed, on the ground that the summons issued under Sections 491, 492 of the Code of Criminal Procedure did not, as it should have done, specify the amount of the recognizance, the number of sureties required, and the amount in which they were to be bound respectively.
3. Section 492 distinctly provides that the summons shall set forth the substance of the report or information on which it is issued, the amount of the bond, and the term for which it is to be enforced, and, if security is called for, the number of sureties required and the amount in which they are to be bound respectively, and the time and place at which the person summoned is required to attend. We think it very desirable that Magistrates should, in the performance of their duties, attend strictly to the provisions of the law. This is desirable on many grounds; and if there were no other reason for desiring it, on this ground alone, that it would save a number of references which take up a considerable portion of the time of this Court, and which are rendered possible merely because Magistrates do not pay that attention which they might reasonably be expected to pay to the express provisions of the law.
4. What we have to decide in the present case is, whether the omission by the Assistant Magistrate to insert in the summons certain of the particulars required by the section is an omission which will invalidate all proceedings had upon a summons so informally issued.
5. Now, in this case, we find that the summons did intimate to both parties who have been bound over, that they were to show cause why recognizance and security should not be taken from them. The summons did not specify, as it should have done, the amount of the recognizance or the amount in which the sureties were to be bound respectively.
6. What then is the nature of the precepts contained in this section of the Code of Criminal Procedure? Are they imperative or directory merely? The Code does not in express language say, what shall be the consequence of not attending to the exact provisions contained in Section 492, and it has been said that where the Legislature has expressed no intention on the point, that intention should be imputed to it which is most proper, and it must be that which is most consistent with reason and with due regard to convenience and justice.
7. In applying this principle it has generally been considered that where the prescriptions of a Statute relate to the performance of a public duty, they, are to be understood as instructions merely for the guidance and government of those on whom the duty is imposed: in other words, they are to be considered as directory merely, and not imperative. Instances are: Where a Statute provided that no person named in the commission of peace should be authorized to act as a justice of the peace until he had taken and subscribed the oaths required by law, and a person named in the commission did act without having taken and subscribed those oaths, it was held, that his not having taken those oaths did not affect the validity of the acts done by him. Again, where a Parochial Assessment Act required that poor-rates should contain certain particulars relating to the person and property to be rated, this provision was held to be directory, and not to affect the validity of a rate which did not contain all the particulars required.
8. In a very excellent little work on statute-law recently published by Mr. Wilberforce, the result of the cases is thus stated: 'A similar construction is placed upon Statutes which provide that things shall be done in a certain manner. Such a provision is usually considered directory, unless the Legislature has used negative words or other words showing an intention to treat the manner of performance as essential to the validity to the act, or unless the Statute confers a special authority which must be strictly followed.'
9. Now in the case before us, if the summons had not expressly given notice to the petitioners that they would have to show cause why they should not give security, and notwithstanding this omission security had been taken from them, we think that they would have been prejudiced by the form of the summons. But as the summons did give distinct notice that both recognizance and security would be required of them, although the amount of such recognizance and security was not specified, we think that the irregularity was not one which really prejudiced the petitioners, and that the provisions of the law as to the insertion in the summons of the amount of the recognizance and security ought to be regarded as directory only, and not as imperative. In this view the omission in the summons will not invalidate the subsequent proceedings.
10. We, therefore, decline to interfere with the order of the Assistant Magistrate.