1. The question that arises in this Rule is whether the provisions of Section 360 of the Criminal Procedure Code are applicable to proceedings under Section 117 of the Criminal Procedure Code when a person is called upon to show cause why he should not furnish security for good behaviour.
2. In Clause (2) of that section it is provided that such an enquiry shall be made in the manner hereinafter prescribed for conducting trials and recording evidence in warrant cases. Section 360 of the Criminal Procedure Code refers to evidence taken under Sections 356 or 357. Though Section 356 does not expressly refer to warrant cases, it refers to all cases other than summons cases, and cases mentioned in Sub-Section (1) of Section 260, Clauses (b) to (m). These clauses include some cases Which are warrant cases, but only cases of minor offences. The Code does not prescribe a manner for recording evidence applicable to all warrant cases. I think that, to give a reasonable meaning to the words in Section 117, Section 356 must be held to prescribe the manner in which evidence should be recorded in warrant cases. If this is so, it follows that Section 360 of the Criminal Procedure Code, is applicable, and failure to comply with the provisions of that section would vitiate the enquiry or trial which has resulted in an order under Section 118 of the Code.
3. On behalf of the Crown it is pointed out that enquiries under Chapters XII and XVIII of the Code are specifically mentioned in Section 356, and it is argued that if it was intended to make this section applicable to any proceeding under Chapter VIII also, that would also have been expressly mentioned. It seems to me that the Legislature, having provided that evidence should be recorded as in warrant cases in Section 117, did not think it necessary to again refer to these proceedings when dealing with the question of the manner in which evidence was to be recorded. My attention has also been drawn to the case of Binode Behari Nath v. Emperor (1923) I. L. R. 50 Calc. 985. It is true that it is hard to distinguish the reasoning under which it was then held that the provisions of Section 342 are not applicable to cases of enquiry under Section 117 from the argument advanced on behalf of of the Crown in opposing the present Rule. But there are two other cases, to one of which I was a party, Nawab Ali v. Emperor (1924) I. L. R. 52 Calc. 470. and Criminal Revision Case No. 851 of 1924 Unrep. decided on 25 Nov. 1924., and in both of these it is held that an omission to comply with the provisions of Section 360 of the Criminal Procedure Code, in proceedings under Section 117 of the Criminal Procedure Code, vitiated the trial. Following these decisions I must make this Rule absolute.
4. Ghose J. As we are bound by the previous decisions of this Court on the question now before us, I agree that this Rule must be made absolute so long as these decisions are not over-ruled by a Full Bench. Personally, I entertain considerable doubt whether Section 360 of the Criminal Procedure Code applies to proceedings under Chapter VIII of that Code. The provisions of Section 360 are matters of procedure, and having regard to the fact that the directions are imperative disregard of the provisions of that section, with regard to any trial or enquiry falling within it, vitiates the whole trial or enquiry. But in construing a matter of procedure, which does not involve any question of principle, we must be guided by the actual words of the Code, and Section 360 only refers to evidence taken under Section 356 or 357 of the Criminal Procedure Code. Although, according to the provisions of Section 117, Sub-Section (2) of the Code, evidence should be recorded in cases referred to in that Section in the manner prescribed for recording evidence in warrant cases, that does not make Section 356 applicable in terms. Section 356 specifically refers to enquiries under Chapters XII and XVIII only, and does not refer to Chapter VIII. The result, therefore, in my opinion, is that in making enquiries under Section 117, evidence should be recorded as in a warrant case. But Chapter VIII not having been referred to in Section 356, Section 360 of the Code would not apply to the record of such evidence.
5. As this Bench is now constituted it cannot refer this question to a Full Bench, my learned brother having expressed his opinion previously on this matter to which he adheres. Although I am of a different opinion, we are bound by the decisions referred to in his judgment.
6. We set aside the order passed against the petitioner under Section 118 of the Criminal Procedure Code. It will be open to the District Magistrate to take further proceedings against the petitioner if he thinks fit.