1. This is a reference in the case of one Nepal Shikary, who having failed to furnish security for Rs. 1,000 under Section 110 by order of the Presidency Magistrate, Calcutta, was liable to rigorous imprisonment for three years on reference to this Court.
2. The first point which strikes us is that Section 362, Criminal Procedure Code, does not apply to cases under Section 110 where it has become necessary to make a reference to the appellate Court. The case of Sheikh Babu v. Emperor 33 C. 1036 : 4 Cr.L.J. 368 to which one of us was a party does not refer to a case of this nature. It refers to cases which are held to be not appealable and in which no reference has to be made. There it was held that the section speaks of substantive sentences of imprisonment and not imprisonment on the failure of the accused to carry out an order as to fine or security, and the case of Schein v. Queen-Empress. 16 C. 799 was relied on. That case we find merely lays down the doctrine that no appeal lies from a sentence of six months' rigorous imprisonment or a fine of Rs. 200 or further period of three months' simple imprisonment passed by a Presidency Magistrate. This, therefore, leads us to find that the case which we have cited can be clearly distinguished from the present one and we are fortified in this opinion by a very recent case in the Allahabad High Court Emperor v. Tola Khan 30 A. 334 : 7 Cr.L.J. 427. It was there argued also by one of us who was then at the bar that in this case two questions would arise, 33 C. 1036 : 4 Cr.L.J. 368 whether the words detained in prison ' in Sub-section (2) of Section 123 of the Code of Criminal Procedure, are equivalent to imprisonment in jail or to detention in custody, and if the former, i.e., imprisonment, do the provisions of Section 397 of the Code apply to the case of a person imprisoned in default of furnishing security who is subsequently convicted and sentenced to imprisonment for an offence.' It was then argued that in a case where the accused was unable to furnish security for good behaviour and where he was liable to three years' rigorous imprisonment and that sentence could not be inflicted without the confirmation of a superior Court, that was a substantive sentence of imprisonment. That view was accepted by the Allahabad High Court which went a good deal further and held that the same doctrine applies to every case under Section 110. But we need not go so far as that, as in fact we are precluded from doing so by the ruling in the case of Sheikh Babu v. Emperor 33 C. 1036 : 4 Cr.L.J. 368. But we do not think that in a case where a Presidency Magistrate finds it necessary to refer a sentence of three years' rigorous imprisonment to this Court that he must provide us with the same materials as we get in a similar case from the muffasil Court. This is only one of the reasons why we would direct a new trial in this case. There were substantive charges of receiving stolen property against the accused and he had been before the Police Court at Sealdah for some time. The police withdrew those cases and he was released. He was re-arrested as he was leaving the Court on a charge under Section 110, the evidence of which is principally identical with that in the cases of receiving stolen property in which he had just been discharged. The evidence of association dates back from several years and although there are indications of such association more recently, the evidence as to that has not been clearly separated from the older and less relevant evidence, and the record excepting that of the evidence of the accomplice witnesses is so meagre that it is impossible to say that the accomplices are fully corroborated. We may also point out that the confession of Dhup Narain, which is the first piece of evidence relied on by the Magistrate, was held by him during the trial to be inadmissible. Then again another piece of evidence which was used is that the accused was named as associating with certain bad characters who are named. There is no evidence that these persons are bad characters and as this is evidence of reputation, such reputation can only be based on association with proved bad characters and not with reputed bad characters. Then again three of the witnesses at least, Dhup Narain, Biswanath and the coachman are accomplices and their evidence must be received with caution. Then the previous convictions are not substantive evidence in a case under Section 110, Criminal Procedure Code, though they may have an effects in deciding for what length of time the accused was to be bound down. But it seems to us that in all this mass of undigested and meagrely recorded evidence, there is a great deal of prima facie ground for suspicion and that the case ought to be properly tried after eliminating that which is not evidence and marshalling that which is evidence and after a proper record of the examination and cross-examination of the witnesses under the provisions of Section 117, Criminal Procedure Code.
3. We, accordingly, set aside the order of the learned Presidency Magistrate and direct that the case be retried. In the meantime, the accused will furnish bail to the satisfaction of the Presidency Magistrate.