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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioners obtained a Rule directing that the record be sent for and that a Rule issue upon the District Magistrate to show cause why the order binding the petitioners for good behaviour should not be set aside, or why such other order as the Court may think fit should not be passed. The petition alleges that the petitioners' cases were not separately dealt with by the Sessions Judge and the Additional Magistrate in accordance with law, and that the fitness of the sureties tendered should have been considered by the Magistrate himself under Section 122 of the Criminal Procedure Code. The Rule also sought that the petitioners be released on the securities tendered for good behaviour and that, meanwhile, they be admitted to bail to the satisfaction of the District Magistrate.

The Court framed three principal points for determination: (i) whether the Sessions Judge's order confirming the Additional District Magistrate's orders can be sustained, (ii) whether the petitioners should have been separately tried by the Magistrate, and (iii) whether the sureties tendered should have been refused.

Legal Issues Presented

  1. Whether the order of the Sessions Judge confirming the orders of the Additional District Magistrate can be sustained (including whether the Sessions Judge's order sufficiently shows that the case of each accused was taken into consideration).
  2. Whether the petitioners should have been separately tried by the Magistrate instead of being tried jointly (legality and prudence of joint trial for alleged gang of swindlers).
  3. Whether the sureties tendered by the petitioners should have been refused and, specifically, whether the inquiry into the fitness of sureties under Section 122 of the Criminal Procedure Code must be held by the trying Magistrate himself and in the form of a judicial inquiry.

Arguments of the Parties

Petitioners' Arguments

  • The petitioners' counsel relied on Jamait Mullick v. Emperor (1907) I.L.R. 35 Calc. 138, arguing that the Sessions Judge's order should show on its face that the case of each accused was separately taken into consideration.
  • The petitioners contended that under Section 122 the trying Magistrate must, on the day he decides the case, proceed to inquire on sworn testimony (without assistance of police or other officer) into the fitness of the sureties — including inquiry into financial position, character and other qualifications of the sureties.
  • Implicitly, petitioners challenged the refusal of sureties and whether those refusals complied with the required procedure under Section 122.

Crown / Respondent's Arguments

  • The learned Counsel for the Crown argued that the ruling in Jamait Mullick was not applicable because the order of the Sessions Judge was not an appellate judgment; thus the formal appellate-judgment requirements need not apply.
  • On the matter of sureties and inquiry under Section 122, while not articulated as a single alternative theory in the opinion, the Crown's position is reflected in accepting the practical operation of the Magistrate's delegation and the course of the proceedings (as inferred from the record described by the Court).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jamait Mullick v. Emperor (1907) I.L.R. 35 Calc. 138 That the judgment of an appellate court should show on its face that the case of each accused has been taken into consideration. The petitioners relied on this authority; the Court observed it may be open to doubt whether the formal provisions governing trial and appeal judgments apply to orders under Section 123(3), but held it reasonable that the Sessions Judge should show he had considered each prisoner's case; the Court was not entirely satisfied that this had been done in the present case.
Suresh Chandra Basu v. Emperor (1904) 3 C.L.J. 575 Disapproval of a Magistrate acting on a police report rather than holding an inquiry himself (implication that the Evidence Act may apply). Referenced in discussing whether Section 122 requires a judicial inquiry and whether the Magistrate must himself hold such inquiry; used to show that some authorities disapproved of reliance on police reports for deciding fitness of sureties.
Gurudas Nag v. Gaganendra Nath Tagore (1905) 2 C.L.J. 614 That proceedings under Section 145 can be transferred and that Section 529(f) can cure irregularity. Used to support the proposition that, even if Section 122 contemplates a regular judicial inquiry, such an inquiry could be delegated or the transfer cured by statutory provisions; formed part of the authority for permitting delegation/transfer.
Surjya Kanta Roy Choudhry v. Emperor (1904) I.L.R. 31 Calc. 350 Extension of the principle allowing transfer or curing of proceedings to Section 107 proceedings. Cited as further authority extending the principle that certain proceedings may be transferred or irregularities cured, supporting the view that Section 122 inquiries need not uniquely be held only by the original Magistrate in all circumstances.
Sarat Chunder Roy v. Bipin Chandra Roy (1902) I.L.R. 29 Calc. 389 Authority cited in the context of transfer and curing of proceedings under the Code. Referred to as part of the body of authorities showing transfer/cure principles; cited to support the view that Section 122 inquiries could be subject to the operation of other Code provisions.
Ram Kissore Roy v. Dwarka Nath Sen (1906) 10 C.W.N. 1095 Authority cited in the context of transfer and curing of proceedings under the Code. Referred to similarly as supporting transfer/cure principles relevant to inquiries under Section 122.
Queen-Empress v. Prithi Pal Singh (1898) All. W. N. 154 That the Magistrate must decide whether a surety is fit and proper and cannot delegate that function to others; the decision must be upon evidence, not merely on a report. Relied upon by Ryves J. to support the position that the Magistrate should himself hold the inquiry into the fitness of sureties and should not act on reports or delegate to others.
Re Abdul Khan (1906) 10 C.W.N. 1027 That the Magistrate should not refer the fitness of sureties to be inquired into by the police. Quoted by Ryves J. to reinforce the view that the Magistrate must independently exercise judgment and not rely on police inquiry/reports when deciding fitness of sureties.
Emperor v. Balwant (1904) I.L.R. 27 All. 293 That the Magistrate must satisfy himself by legal methods as to the sufficiency of security and cannot delegate his functions in this respect to a subordinate or decide on a report furnished by another person. Relied on by Ryves J. as authority for directing that the Magistrate should himself hold the inquiry into the fitness of sureties and should not delegate that function to a subordinate.

Court's Reasoning and Analysis

The Court proceeded by addressing the three principal points in turn.

1. Whether the Sessions Judge's order can be sustained

The petitioners relied on Jamait Mullick v. Emperor to argue that an appellate judgment should show on its face that each accused's case was considered. The Crown countered that Jamait Mullick was inapplicable because the Sessions Judge's order was not an appellate judgment. The Court noted some doubt whether the formal provisions governing judgments in trials and appeals (Sections 367 and 424) apply to orders under Section 123(3), but held that, even if they do not strictly apply, it is reasonable to require the Sessions Judge to show that he has considered the case of each individual prisoner. The Court emphasized that each prisoner has a right to have his case considered on its merits and the order should indicate that this right was not overlooked. On the facts, the Court stated it was "not entirely satisfied" that the Sessions Judge had adequately demonstrated consideration of each prisoner's case.

2. Whether the petitioners should have been separately tried

On this point the Court was "quite satisfied" that the joint trial was legal and proper. The Court reasoned from the wording of the relevant statutory provision and the nature of the allegations: the proceedings were brought because the accused were said to belong to a gang of swindlers who habitually cheated in concert (by confidence tricks requiring numbers). The main issue was whether these persons habitually cheated in concert as members of a gang. The Court rejected the argument that evidence of acts by one member could not be used against another, explaining that evidence of habitual association with habitual cheats is admissible and relevant under Section 11 of the Evidence Act. The Court found the existence of the gang and the relations of each accused to it to be the matters under inquiry, and concluded that a joint trial was appropriate and, in this case, judicious. The Magistrate's explanatory passage (quoted in the opinion) supported the view that the accused formed one gang for the purpose of swindling; to deal with members separately would have been injudicious.

3. Whether the sureties tendered should have been refused (Section 122 inquiry)

The Court reviewed conflicting authorities. Petitioners' counsel contended that Section 122 requires the trying Magistrate personally to conduct an inquiry on sworn testimony on the day he decides the case, examining fitness of sureties (financial position, character, and other qualifications). The Court observed that some Allahabad rulings held that the inquiry must be made by the trying Magistrate. The Court expressed doubt whether Section 122 necessarily contemplates a judicial inquiry in the formal sense, noting that the statutory provision simply allows a Magistrate to refuse to accept any surety "on the ground that, for reasons to be recorded by the Magistrate, such surety is an unfit person."

The Court considered precedents permitting transfer of proceedings (e.g., Gurudas Nag v. Gaganendra Nath Tagore and related authorities) and concluded that even if Section 122 contemplates a regular judicial inquiry, there was no reason why such an inquiry could not be delegated to another Magistrate or be subject to the operation of Sections 192 and 528 (curing provisions). Thus, the primary opinion doubted that Section 122 mandated a non-delegable, formal judicial inquiry by the trying Magistrate.

The Court then examined the record and reasoned that in many instances the Additional District Magistrate explicitly recorded reasons and the inquiring Magistrate's reasons were placed on the file; the Additional District Magistrate adopted those reasons. The Court found that in several cases no sureties were offered at all, and in others the sureties failed to attend for examination — which the Court regarded as a legitimate ground for rejection because it would be unsafe to accept people as security whom the Magistrate had not been able to question. However, the Court identified four named cases (Bharat Chandra Dey, Amiraddi, Rasik Chandra Dey, and Haridas Dey) in which the sureties were asked to state in writing what influence they had over the accused and, on failing to do so, their security was rejected — a course the Court described as "not at all a proper order."

Although the primary judge (author of the main opinion) did not accept that Section 122 required the trying Magistrate personally to hold the inquiry in all cases, he deferred to his colleague on the desirability of further inquiry and directed remedial steps (see Holding below).

Ryves J., while agreeing with the majority on the first two points (Sessions Judge's order and joint trial), dissented on the third point. Ryves J. agreed with the Allahabad authorities that under Section 122 the Magistrate should himself hold an inquiry into the fitness of the proposed sureties and should not delegate that function, nor act on police reports. He cited Queen-Empress v. Prithi Pal Singh, Re Abdul Khan and Emperor v. Balwant to support the rule that the Magistrate must exercise independent judgment and satisfy himself by legal methods, not by delegation or police report.

Holding and Implications

The Court's operative directions can be summarized as follows:

CORE RULING: The case is to be sent back for further inquiry and rehearing as specified below.

  • Further inquiry shall be made into the fitness of the sureties offered by the petitioners: Hamijuddi Chowdhry, Kalu Mirza, Madhab Karmakar, Amiraddi Miah, Bharat Chandra Dey, Rasik Chandra Dey and Haridas Dey.
  • Thereafter the Sessions Judge will re-hear the proceedings under Section 123 of the Code so far as they affect the persons who have petitioned this Court and have not been released on security, namely: Debendra Chandra Dey, Kali Kumar Dey, Mahendra Dey, and so many (if any) of the seven men mentioned above as fail to give security.
  • The judgment of the Sessions Judge should, as a matter of reasonableness, show that the case of each individual prisoner has been considered; the Court expressed concern that the Sessions Judge's order may not have adequately shown such consideration.
  • On the question whether the trying Magistrate must personally conduct the inquiry under Section 122, the Court split: the primary opinion doubted that a formal non-delegable judicial inquiry is always required and accepted that delegation or curing provisions might apply; Ryves J. held the Magistrate must himself hold the inquiry and should not delegate it.

Direct effect on the parties: specific further inquiries into sureties for the named petitioners will be held and certain petitioners' cases will be re-heard by the Sessions Judge as directed. The opinion does not articulate broader legal consequences beyond these remedial directions; it does not purport to establish a new binding rule resolving the tension between the authorities but records the split in views of the bench on the non-delegability of Section 122 inquiries.

Source constraint: This summary is limited to, and faithfully reflects, only the information contained in the provided opinion.

Show full summary ...

    Kalu Mirza v. Emperor

    1. The petitioners in this case have obtained a Rule in the following terms:

    "Let the record be sent for, and a Rule issue upon the District Magistrate to show cause why the order binding down the petitioners for good, behaviour should not be set aside, or why such other order in the matter should not be passed as to this Court may seem fit, on the ground that the case of the petitioners was not separately dealt with by the Sessions Judge and the Additional Magistrate in accordance with law, and why the fitness of the sureties tendered by the petitioners should not be considered by the Magistrate himself under Section 122 of the Criminal Procedure Code; and let a Rule also issue on the District Magistrate to show cause why the petitioners should not be released on the securities tendered for good behaviour, and meanwhile, pending the hearing of the Rule, let the petitioners be admitted to bail for their appearance whenever wanted to the satisfaction of the District Magistrate."

    2. It will be seen that there are three principal points for determination, namely, (i) whether the order of the Sessions Judge confirming the orders of the Additional District Magistrate can be sustained, (ii) whether the petitioners should have been separately tried by the Magistrate, and (iii) whether the sureties tendered should have been refused.

    3. On the first point, the learned Counsel for the petitioners relies on the decision in the case of Jamait Mullick v. Emperor (1907) I.L.R. 35 Calc. 138, where it is laid down that the judgment of an Appellate Court should show on the face of it that the case of each accused has been taken into consideration. The learned Counsel for the Crown argues that this ruling is not applicable, inasmuch as the order of the Sessions Judge is not an appellate judgment. Now, it may be open to doubt whether the provisions of Sections 367 and 424, which apply to judgments in trials and in appeals, govern orders under Section 123, Sub-section (3). But even if they do not, it is only reasonable to require the Sessions Judge, in writing his order, to show that he has considered the case of each individual prisoner, as it is his duty to do. Even if the order need not contain all the details required by Section 367, still each prisoner has a right to have his case considered on its own merits, and the order should show that this has not been lost sight of. I am not entirely satisfied that this has not been lost sight of in the present case.

    4. On the second point, I am quite satisfied that the joint trial was perfectly legal and proper. Numerous rulings have been cited on the point, but the words of the section are perfectly clear in themselves and stand in no need of elucidation. These proceedings have been taken against the accused because they are said to belong to a gang of swindlers who (principally by means of the confidence trick) cheat ignorant people of their money, resorting occasionally to more drastic methods when the victims are not sufficiently unintelligent. The matter under inquiry is whether these persons do or do not habitually cheat in concert as members of the gang. The confidence trick cannot be worked by a single swindler. It requires numbers, and these people are said to have associated themselves together obviously that this difficulty may be overcome. It is argued that by this joint trial evidence of the acts of cheating committed by one member of the gang is improperly used as evidence against another. The argument does not impress me. It can hardly be disputed that evidence of habitual association with habitual cheats would be admissible as evidence against the person so associating. Indeed, evidence of association with bad characters is the commonest kind of evidence in proceedings of this nature. If that is so, it is surely relevant to give evidence as to what kind of people they are, with whom the accused associate, and if they are a gang of swindlers the fact is certainly relevant and may be proved against the accused. When the question is whether a man is a habitual cheat the fact that he belongs to an organization formed for the purpose of habitually cheating in concert is surely relevant under Section 11 of the Evidence Act. If that is so, it is clearly open to the prosecution to prove against each accused that the gang is a gang of cheats, or, in other words, that the members of the gang do cheat. It would surely be impossible to hold that it may be proved that the accused associates with a gang of swindlers, but that it may not be proved against him that the members of the gang do swindle. It appears to me that the existence of this gang, and the relations of each of the accused to it, are the matters under inquiry in these proceedings, and that, as the petitioners are alleged to have been associated in these matters, the joint trial is perfectly legal. As to the argument that even if the joint trial is legal, yet separate trials ought to have been held, that has been committed by the Legislature to the discretion of the Magistrate, which I have no desire to abridge. But in my opinion this is a case in which the accused persons ought certainly to have been tried together. The Magistrate says:

    "No one would expect every member of a gang of this sort to be openly engaged in the actual execution of each individual swindle, but the similarity of the tactics employed, the constant association of different groups of this gang in similar swindles, the evidence of complicity offered by several incidents in which members subsequently took a hand, and lastly the evidence of the accomplice who proves the sharing out of the profits of these transactions among the different members of the gang,-all these facts show clearly that for the purpose of swindling and extortion the accused were members of one gang."
    To deal with the members of a great criminal organization like this separately would, in my opinion, have been wholly injudicious.

    5. On the third point, there are two rulings of the Allahabad High Court, that an inquiry under Section 122 must be made by the trying Magistrate himself. It has been contended by the learned Counsel for the petitioners that under that section the trying Magistrate must, on the day that he decides the case, proceed to inquire on sworn testimony, without the assistance of any police or other officer, into the fitness of the sureties tendered. This means an inquiry into their financial position, their character, and their other qualifications to be accepted as good security for the good behaviour of the accused. In the present case there were 13 persons bound down and 39 sureties required, so that the case itself would have been a mere preliminary to the inquiry into the fitness of the sureties. Of course, if this is the law, it must be enforced, but it appears to me to be a superstructure out of all proportion to the simple words that constitute its foundation. Those words are-

    "A Magistrate may refuse to accept any surety offered under this Chapter on the ground that, for reasons to be recorded by the Magistrate, such surety is an unfit person."
    That is all, and I think it is open to considerable doubt whether the section contemplates an inquiry in the form of a judicial proceeding at all. It has been held in Allahabad that such an inquiry is a judicial proceeding, and in the case of Suresh Chandra Basu v. Emperor ( 1904) 3 C. L J. 575 the learned Judges disapproved of the Magistrate's acting on a police report, which may perhaps imply that they considered that the Evidence Act applied. The point, however, does not seem to have been fully considered.

    6. I doubt whether Section 122 necessitates a judicial inquiry at all; but, if it does, I see no reason why such an inquiry should not be delegated to another Magistrate. It was held in Gurudas Nag v. Gaganendra Nath Tagore (1905) 2 C.L.J. 614, that proceedings under Section 145 can be transferred, and that, even if they could not, Section 529(f) would cure the irregularity. This principle was extended to proceedings under Section 107 by the decision in the case of Surjya Kanta Roy Choudhry v. Emperor (1904) I.L.R. 31 Calc. 350. I may refer too to Sarat Chunder Roy v. Bipin Chandra Roy (1902) I.L.R. 29 Calc. 389 and Ram Kissore Roy v. Dwarka Nath Sen (1906) 10 C.W.N. 1095. Even assuming, therefore, that Section 122 contemplates a regular judicial inquiry, I see no reason why such an inquiry, alone among inquiries under the Code, should not be subject to the operation of Sections 192 and 528.

    7. Next, it is argued that the Magistrate should have recorded his reasons. No doubt this is so, but I do not think that the omission in the peculiar circumstances of this case justifies interference in revision. The Magistrate, to whom the inquiry was transferred, recorded his reasons for rejecting the sureties, and the orders of the Additional District Magistrate, rejecting the sureties, are written just below. It is clear that he accepted the reasons of the inquiring Magistrate and made them his own. Nor could he possibly have done otherwise in most of the cases on the reasons given. As regards several of the petitioners, it does not appear from the record that they offered any sureties at all. Nor is any complaint of the rejection of sureties made in the petition on which this Rule was granted. In the case of others, their sureties were called on to attend for examination, but did not do so. It has been argued that this is not a ground for rejection, but it appears to me that it would be wholly unsafe and improper for a Magistrate to accept, as security for good behaviour, men whom he did not know himself, and who would not appear before him to be questioned. The only cases in which personally I would interfere with the rejection of the sureties are those of Bharat Chandra Dey, Amiraddi, Rasik Chandra Dey, and Haridas Dey. In their cases the sureties were called on to state in writing what influence they had over the accused persons, and on their failing to do so their security Was rejected. This does not seem to me at all a proper order.

    8. My learned brother, however, considers that those who tendered sureties are entitled to have an inquiry into their fitness by the trying Magistrate. Although I am unable with the greatest respect, to agree with his reasons, I do not think that I should dissent from him in directing further inquiry, when he dooms it necessary.

    9. Accordingly, the case will be sent back. Further inquiry should be made into the fitness of the sureties offered by the petitioners Hamijuddi Chowdhry, Kalu Mirza, Madhab Karmakar, Amiraddi Miah, Bharat Chandra Dey, Rasik Chandra Dey and Haridas Dey. Thereafter the Sessions Judge will re-hear the proceedings under section 123 of the code, so far as they affect the persons, who have petitioned this Court, and have not been released on security, namely, Debendra Chandra Dey, Kali Kumar Dey, Mahendra Dey, and so many (if any, of the seven men mentioned above as fail to give security.

    Ryves J.

    10. I agree generally on the first and second points decided by my learned brother, but I regret I cannot agree on the third ground.

    11. Under Section 122 of the Criminal Procedure Code, it seems to me that a Magistrate should himself hold an inquiry into the fitness of the proposed sureties. This has been held in the Allahabad cases already referred to; and I agree with those rulings. The first case will be found in Queen-Empress v. Prithi Pal Singh (1898) All. W. N 154. It was there held--"we know of no power which the law gives to Magistrates to call upon other persons to exercise the functions which are entrusted by law to Magistrates alone. It is the Magistrate who is to decide whether the surety is or is not a fit and proper person. He is to do that upon evidence and cannot do so upon a report furnished by another person, which is not evidence." The same construction appears to have been accepted by the Chief Court of the Punjab. In Re Abdul Khan (1906) 10 C.W.N. 1027, it was laid down by this Court that the Magistrate should not refer the fitness of the sureties to be inquired into by the police. It was there said "the intention of the Legislature in insisting that a Magistrate should record his reasons in refusing to accept a surety on the ground of unfitness is that the Magistrate should exercise his independent judgment." Similarly in Suresh Chandra Basu v. Emperor (1904) 3 C.L.J. 575, the Magistrate was directed himself to hold an inquiry, and his orders were set aside on the ground that he had acted on reports submitted by the police and not on an inquiry held by himself. There are obvious reasons why an inquiry of this kind should not be entrusted to the police. When the police institute proceedings under this Chapter, they usually desire that the persons proceeded against should go to jail rather than that they should furnish security and remain at large. Besides, the accused persons should certainly have an opportunity of meeting the allegations against the fitness of their sureties which they do not get if the Magistrate acts on an ex-parte report of the police. In this case, however, the inquiry was delegated not to the police but to a subordinate Magistrate. It was held in Emperor v. Balwant (1904) I.L.R. 27 All. 293, following certain earlier cases, that "the Magistrate must satisfy himself by legal methods as to the sufficiency of the security tendered by the person against whom an order under Sections 110 and 118 of the Code of Criminal Procedure has been made, and that he cannot delegate his functions in this respect to a subordinate, and cannot decide the question of the surety being a fit and proper person upon a report furnished by another person." I think we should follow these decisions.

    12. I would, therefore, direct that the case be referred back to the learned Magistrate to hold an inquiry himself into the fitness of the sureties tendered in the case of the persons enumerated in the judgment of my learned brother, and agree in the rest of the proposed order.

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    Comments

    Kalu Mirza v. Emperor
    (Aug 12, 1909)