Judgment Jamuar, J. 1. A proceeding under Sec.110 of the Code of Criminal Procedure was drawn up against six persons, and the enquirty was made by the Sub-divisional Magistrate of Madhubani. The learned Magistrate, on the 2nd Juno 1953, passed an order under Clauses (a), (d) and (f) of Sec.110 of the Code of Criminal Procedure, and exercising his powers under Sec.118 (1) of that Code, he directed that four of those men would execute a bond of Rs. 1,000 each with two sureties of Rs. 500 each to be of good behaviour for a period of two years, and in default, they would undergo rigorous imprisonment for the some period. The remaining two were discharged under Sec.119 of the Code of Criminal Procedure. 2. Two of the four, who were ordered to execute bonds, executed the bonds, but the other two did not do so, and they were sent to jail. It appears that thereafter two appeals were filed to the Sessions Court at Darbhanga, one by the two who had executed the bonds and who are respondents before us and the other by the other two who, in default of the execution of the bonds, were sent to jail. The two appeals were beard by the learned Additional Sessions Judge of Darbhanga together, and by his order dated the 23rd September 1953, he allowed both the appeals. 3. It will appear from the judgment of the learned Additional Sessions Judge that he allowed the appeals on a point of law holding that the learned Sub-divisional Magistrate had committed, to use his own words, a serious blunder inasmuch as the Magistrate had not applied his mind to the provisions of Section 123 (2) of the Code of Criminal Procedure. In my opinion, the view taken by the learned Additional Sessions Judge is wholly erroneous. He has held that the Sub-divisional Magistrate had no power to call upon the appellants to give security for a period exceeding one year, and that if the learned Magistrate desired that he should call upon them to give security for a period exceeding one year, the procedure was that he should have made a reference to the Sessions Judge and should have issued a warrant directing the appellants to be detained in prison pending the orders of the Sessions Judge. Since the Subdivisional Magistrate had not done so, the learned Additional Sessions Judge held that he had no jurisdiction to pass the order which he did. 4. What Sec.123 (2) of the Code of Criminal Procedure provides is that when a Magistrate passes an order upon a person to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge, It is clear from the provisions of this sub-section that a Magistrate is empowered to order a person to give security for a period exceeding one year, and that this sub-section has reference only to the case where after such an order is passed, a default in finding the security is made; that is to say, if the security is given, this sub-section does not, apply and no reference to the Court of Session is necessary, even though the term of security exceeds one year. It is when a default is made in giving the security then only the provisions of this sub-section shall apply. In these circumstances, the view expressed by the learned Additional Sessions Judge is wholly erroneous, and his order cannot be upheld. The judgment and order passed by the learned Additional Sessions Judge, dated the 23rd September 1953, must, therefore, be set aside in so far ns the two respondents are concerned. 5. The question then arises whether an order for a remand of the case to the Court of the Sessions Judge should be made. It has been represented to us that the result of the petting aside of the order of the Additional Sessions Judge would, in effect, be that the order of the Sub-divisional Magistrate passed against the respondents under Sec.118 (1) of the Code of Criminal Procedure will be revived, and that by so doing, the respondents would be prejudiced in the sense that when their case has not been heard on its merits in the Court below, the order passed against them under Sec.118 (1) of the Code of Criminal Procedure will have to be upheld. In these circumstances, I think it would be more appropriate to direct that the case be remanded to the Court of the Sessions Judge at Darbhanga to re-hear the case on its own merits and dispose of the matter in accordance with law. Imam, J. 6 I agree.