Emperor v. Nasir Ahmad And Others

Dalal, J.:— After stating the facts as above thus continued:—

The learned counsel, who put before me all the case-law on the subject, argued that under section 118 an order to execute a bond may be passed only when upon inquiry it is proved that it is necessary for keeping the peace that the person in respect of whom the inquiry is made should execute a bond. The inquiry ordered under section 118 is “such inquiry”—a repetition of the words used in section 117(2). Such inquiry, according to section 117(2), shall be made, as nearly as may be practicable, where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases. The procedure as to the trial of summons cases is laid down in chapter XX of the Code of Criminal Procedure. Under section 242, when the accused appears, the Magistrate has to tell him the particulars of the offence of which he is accused and ask if he has any cause to show why he should not be convicted. All this was done in the present case by the issue of the notice to Abdul Raoof, and in the case of the others when they appeared before the court, and the Court made preparation for recording the evidence for the prosecution. Then under section 243, if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. In the present case statements of the applicants were recorded as far as possible in their own words; in one case, on the order-sheet, and in the other case, by the Magistrate himself on the 12th of November. The note of the Magistrate is:— “At this stage the accused” (that is those other than Abdul Raoof) “pray that they may be allowed to enter into personal bonds for Rs. 500 each, without sureties, for keeping the peace for a period of one year.” It was argued that this was not an admission that they were ready to commit a breach of the peace. When an accused called upon to give security for keeping the peace, says in terms that no prosecution evidence may be recorded and he is willing to give security, it is sufficient proof that it is necessary for keeping the peace that he should execute a bond. It should not be forgotten that the Magistrate had previous information on which he issued notice under section 107, and the willingness of the accused himself to give a bond substantiated that information and proved its truth. If the accused did not admit the danger there was as to his breaking the peace he need not have spoken words which would convey that impression to any ordinary reasonable being. In the present case, in my opinion, there was a full inquiry; as laid down in section 117(2) of the Code in the manner directed in chapter XX of the Code. I fail to see what further inquiry was possible. Personally I should consider a Magistrate exceedingly foolish if, in spite of the person to whom the notice was issued expressing his, willingness to enter into a bond, he went on recording prosecution evidence which was not likely to favour the accused. From the attitude taken up by the accused it was certain that he would not cross-examine the prosecution witnesses. It would be reducing proceedings to a farce to insist upon a Magistrate to go on recording prosecution evidence solemnly when the accused person took no interest in it and was ready to admit its truthfulness.

As regards the case law on the subject, the only case of this Court which supports the argument put forward by the learned counsel is that of Chander Shekhar v. Emperor. As it is not reported in any of the two recognized law journals of this Court, namely, the Allahabad Law Reports and the Allahabad Law Journal, I do not feel myself bound to follows it, particularly when in Emperor v. Ghariba Mr. Justice Walsh, in delivering judgement dissenting from this case, noted that he had consulted Mr. Justice Ryves who delivered the judgement in Chander Shekhar's case, and that Mr. Justice Ryves had then agreed with his view. Mr. Justice Walsh, in the judgement he delivered in the case of Jagdat Tewari v. Emperor, gave it as his opinion that the better procedure would be to record evidence for the prosecution in a case like that. He did not lay down any definite rule on the subject, and did not hold that it would be illegal not to record such evidence. He appears to have modified his view subsequently when he delivered his judgement in the case of Emperor v. Ghariba. The facts of the case of Ram Charan v. Emperor were different. There, in a trial upon a notice to bind over for good behaviour, where the procedure applicable would be that of as warrant case, the Magistrate, who directed that security should be taken, did not act on any plea of guilty, but held a full inquiry and formed his opinion of the accused person's bad character on the basis of that inquiry and when the convicted person appealed, the learned Sessions Judge referred only to the accused's offer to give security and the learned Judge of this Court very rightly criticized this procedure of the Sessions Judge and referred the case back to him to decide on the merits whether the applicant was a bad character or not. With all respect, it may be submitted that the general observations of the learned Judge on page 318 of the report are possibly a little too wide. The learned Judge, is reported to have said:—

“In cases arising under section 107 of the Code of Criminal Procedure it has been held times without number; that the Magistrate should hold an independent inquiry and should not act on the mere readiness of the accused to furnish security.”

I have already noticed two of the cases cited by the learned Judge. The third case cited was that of Emperor v. Mul Chand, decided by a Judge of considerable reputation of this Court. The facts in Mul Chand's case were not in conformity with the facts of the present case. There Mul Chand did not admit that he was a person likely to commit a breach of the peace, but rather, put in a long statement alleging the contrary. What he admitted in the statement was only enmity, and from that statement the Magistrate was not justified in presuming that Mul Chand was likely to commit a breach of the peace. The learned Judge, as was to be expected from him, if I may say so with respect, has made reference to section 242 of the Code of Criminal Procedure, and it is obvious that he would not have ordered further inquiry if he had accepted Mul Chand's statement as an offer to give security for keeping the peace. The point of difference between this judgement and the judgements of others quoted by the learned counsel is that in the other judgements reference to chapter XX of the Code is entirely omitted. The case of Prathipati Venkatasami v. Emperor of the Madras High Court is somewhat different,; as there was no statement of the accused but only a statement of his vakil. The Calcutta and the Punjab cases, however, fully support the contention of the learned counsel. They are Ram Chandra Haldar v. Emperor and Prem Singh v. Emperor. In neither of these cases the point appears to have been noted that the inquiry J referred to in section 118 is one laid down in section 117(2) and is similar to that detailed in chapter XX for summons cases. When there is such a glaring omission in the discussion of the question, I think it will not be presumptuous for me to differ from those rulings.

I would ordinarily have referred this matter to Bench of two Judges, but refrain from doing so in this case, because even if I had accepted the learned counsel's view of law I would not have interfered. It is obvious to me that the applicants are laying the court a trick. They and the members of the opposite faction have all been bound over. In order that the trial court may obtain bonds from the members of the opposite faction, they were ready to offer themselves to be bound over, but now after bonds were taken from the members of the opposite party and those persons did not appeal, they seek to take an advantage by discovering a flaw in the procedure of the Magistrate. Whatever the law on any matter may be, I shall never be induced to grant relief to any person whom I suspect of an attempt to cheat a court.

I dismiss these applications.

Applications dismissed.