1. One Kadir Mirza was ordered by the Sub-Divisional Magistrate of Tamluk, under Section 118 of the Criminal Procedure Code, to give security for his good behaviour for a period of two years. The case was referred in due course, under Section 123 of the Code, to the Sessions Judge who, while holding that there was good evidence for binding the man down, set aside the order on the ground that, 'unfortunately the proceedings were very defective.' The defect in them seems to consist of this, that it is stated in the order drawn up under Section 112 of the Code that, as it appeared to the Magistrate that Kadir was 'by general repute' a thief and burglar, he was called upon as such to show cause why he should not give security. The point is that he ought to have been called upon to show cause as being 'by habit' a thief and burglar, and that, as he was not so addressed, he could not be bound down under that description.
2. We find that the evidence was directed mainly to show that Kadir Mirza was a habitual thief and burglar, and that his cross-examination was directed to refute the evidence to that effect. Moreover, we are not prepared to hold that the inquiry provided for by Sections 117 and 118 of the Code is strictly limited by the precise terms of the order drawn up under Section 112. Section 117 provides that after an order under Section 112 has been read or explained to the person concerned, 'the Magistrate shall proceed to inquire into the truth of the information upon which he has acted, and to take such further evidence as may appear necessary;' and Section 118 provides in general terms that 'if, upon such inquiry, it is proved that it is necessary for maintaining good behaviour that the person, in respect of whom the inquiry is made, should execute a bond, with or without sureties, the Magistrate shall make an order accordingly.' No doubt, if the person eventually bound down could show that he was misled or prejudiced by the terms of the order drawn up under Section 112, there would be a clear case for granting him relief, but as we have already shown, there can be no question here of the petitioner having been misled or in any way prejudiced.
3. The Rule is, therefore, made absolute; and we direct that the order of the Sub-Divisional Magistrate be restored, that Kadir Mirza be required to execute a bond for rupees two hundred for his good behaviour for a term of two years, with two sureties each in the sum of rupees one hundred, and that in default he be committed to Jail.