MOHAMAD YASIN v. STATE — 1968 DIGILAW 28 (GUJ)

N. G. SHELAT, J. ( 1 ) THIS appeal arises out of an order passed on 20-2-68 by Mr. N. M. Chhaya City Magistrate 7 Court Ahmedabad in Chapter Summary Case No. 12 of 1968 whereby the appellant has been directed to be detailed in jail for a Period of the bond or till he furnishes the security under sec. 123 (1) of the Criminal Procedure Code since he failed to furnish the security as directed by the learned Magistrate by an order dated 15-1-68. He was directed to execute a bond in the sum of Rs. 1000. 00 for a period of one year with one surety for good behaviour under sec. 109 (b) of the Criminal Procedure Code. ( 2 ) THE appellant was found on the platform No. 7 in the early morning at about 5-30 a m. on 5-1-58 moving from one compartment to the other of the Patan Local. One Parshottam Thobhan of Bhavnagar and some other persons pointed out this appellant to the police. The police made some enquires from him and as he could not explain his presence at the platform by about that time and since he had no ostensible means of livelihood he came to be arrested under sec. 55 of the Criminal Procedure Code. On further enquiry it was found that he was from Bombay and has had no occupation. He appeared to have been convicted on different occasions in respect of offences against property and was externed from the City of Bombay. In those circumstances the charge-sheet against him was sent up to the Court of the learned Magistrate for taking action against him under sec. 109 (b) of the Criminal Procedure Code. ( 3 ) THE learned Magistrate then passed an order marked M-2 directing the opponent to show cause why he should not be asked to execute a bond for a sum of Rs. 1000. 00 with one surety for the like amount for a period of one year under sec. 112 of the Criminal Procedure Code. The opponent was explained the contents of that order together with the nature of the complaint filed against him and was asked as to whether he wanted to show cause against the same. To that the appellant-opponent stated that he was prepared to execute surety bond. 112 of the Criminal Procedure Code. The opponent was explained the contents of that order together with the nature of the complaint filed against him and was asked as to whether he wanted to show cause against the same. To that the appellant-opponent stated that he was prepared to execute surety bond. The learned Magistrate accepted his plea as one of admission on his part to execute the bond and that he had no cause to show against passing any order in that regard. She order was accordingly passed by the learned Magistrate on 15 whereby he was directed to execute a bond for a sum of Rs. 1000. 00 with one surety for like amount for a period of one year for keeping good behaviour under sec. 109 (b) of the Criminal Procedure Code. The appellant did not comply with the said order and that consequently led the learned Magistrate to pass an order under sec. 123 (1) of the Criminal Procedure Code whereby he has been directed to be detained in prison until such period expires or till such period he gives a security to the Court ar the Magistrate who made the order requiring it. Feeling dissatisfied with that order the opponent has come in appeal before this Court. ( 4 ) MR. Desai the learned advocate appointed for the appellant invited a reference to a decision in the case of Bipinkumar alias Ranchhodlal Madhavdas v. State IV G. L. R. 163 where it has been held by Raju J. that an order under sec 109 Criminal Procedure Code cannot be passed without holding an inquiry under secs. 117 and 118 on the ground that the person concerned had expressed his willingness to give surety and to furnish security. Apparently this citation can well cover the facts in the present case. This Court would be bound by any such decision of this Court. But to my mind certain other relevant provisions do not appear to have been brought to the notice of the Court and they are required to be considered before saying that this decision would govern the case. As already pointed out hereabove an order under sec. This Court would be bound by any such decision of this Court. But to my mind certain other relevant provisions do not appear to have been brought to the notice of the Court and they are required to be considered before saying that this decision would govern the case. As already pointed out hereabove an order under sec. 112 of the Criminal Procedure Code was passed by the learned Magistrate setting forth the substance of the information received the amount of the bond to be executed the term for which it was to be in force and the number character and class of sureties if any required. The same was read over to him. The complaint against him was also read over to him as observed by the learned Magistrate. Thus the procedure contemplated under sec. 113 in relation thereto was also followed. Then comes sec. 117 which provides for an inquiry as to truth of information. Sub-sec. (1) thereof runs thus :117 (1) When an order under sec. 112 has been read or explained under sec. 113 to a person present in Court or when any person appears or is brought before a Magistrate in compliance with or in execution. of a summons or warrant issued under sec. 114 the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary. Sub-sec. (2) then says that such inquiry shall be made as nearly as may be practicable in the manner here in after prescribed for conducting trials and recording evidence in summons case. This sub-section has been substituted by Act 26 of 1955. It follows thereform that any such inquiry in respect of a proceeding under secs. 107 108 and 109 of the Criminal Procedure Code has to be in accordance with the procedure contemplated in respect of the trial of summons cases by Magistrate in Chapter XX of the Code. Sec. 241 thereof requires a Magistrate to observe the procedure as laid down in that Chapter in the trial of summons cases. Then comes sec. 107 108 and 109 of the Criminal Procedure Code has to be in accordance with the procedure contemplated in respect of the trial of summons cases by Magistrate in Chapter XX of the Code. Sec. 241 thereof requires a Magistrate to observe the procedure as laid down in that Chapter in the trial of summons cases. Then comes sec. 242 which says that when the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any case to show why he should not be convicted but it shall not be necessary to frame a formal charge. Then sec. 243 says that 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 therefore while following this procedure the learned Magistrate explained the substance of accusation made against him as already pointed out hereabove and asked him to show cause why he should not be bound over under sec. 109 read with sec. 117 of the Code. He had no cause to show why he should not be bound over and at the same time he stated that he was prepared to execute surety bond. That was thus an admission on his part amounting to a plea of guilty as contemplated in sec. 243 of the Code. The learned Magistrate accepted the same and on that basis he passed the order as he could in any other case triable under that procedure. Obviously the quantum of the security and the period for which such a bond were to continue would even then be in the discretion of the learned Magistrate while passing the final order in the case. It is not necessary that it shall be for the sum and period mentioned in the order passed under sec. 112 of the Criminal Procedure Code even if the accused has said nothing with regard to the same. It is therefore clear that when the procedure contemplated both under secs. 112 and 113 also in sec. It is not necessary that it shall be for the sum and period mentioned in the order passed under sec. 112 of the Criminal Procedure Code even if the accused has said nothing with regard to the same. It is therefore clear that when the procedure contemplated both under secs. 112 and 113 also in sec. 243 of the Code had come to be followed by the learned Magistrate as required in sub-sec. (2) of sec. 117 of the Code it cannot be said that even then an inquiry contemplated under sec. 117 (1) of the Code should take place as laid down in the case relied upon by the learned advocate for the appellant. Sec. 117 would come in effect only when he had cause to show against the notice issued to him and that he did not agree to execute any such bond as stated therein. It is then only that the inquiry has to be held with a view to find out the truth of the information upon which the action has been taken. Sub-sec. (2) of sec. 117 of the Code does not appear to have been brought to the notice of the Court and since that case came to be decided without considering the effect of sub-sec. (2) of sec. 117 read with secs. 242 of the Criminal Procedure Code it was held that even if he had agreed to execute a bond the inquiry contemplated under sec. 117 of the Code has to be held. That being so the decision relied upon by the learned advocate for the appellant would not govern the case. ( 5 ) IT was next pointed out that the security directed to be furnished by the appellant for the sum of Rs. 1000. 00 and that again for such a long period of one year has been unduly harsh and heavy. Now order of security should ordinarily be such as may enable the party concerned to get a surety. In cases of this character the proceedings are in the nature of preventing any offences being committed as also enabling them to improve and keep good behaviour. That aspect has to be kept in mind or else such persons may not be able to give security and would have to Court imprisonment for a long period of a year or so. That aspect has to be kept in mind or else such persons may not be able to give security and would have to Court imprisonment for a long period of a year or so. As I said above the question of security and the period for which such a bond should be taken would be within the discretion of the Magistrate and it need not necessarily be the same as set out in the order passed under sec. 112 of the Criminal Procedure Code. Sometimes a sentence passed on failure to furnish security under sec. 123 of the Criminal Procedure Code would be far harsh and excessive which he may not meet if he happened to commit any substantive offence. The accused was arrested on account of his movement on the station i. e. on suspicion under sec. 55 of the Criminal Procedure Code. Even if he had previous convictions that need not necessarily be taken into account while considering the quantum of amount for giving security in respect of proceedings of this character such as under secs. 107 108 and 109 of the Criminal Procedure Code. Interests of justice therefore require that the order of security shall be so modified as to direct him to furnish a bond of Rs. 200. 00 with one surety for like amount and that shall be for a period of three months only ( 6 ) THE order passed by the learned Magistrate shall be so modified as to substitute Rs. 200. 00 in place of Rs. 1000. 00 and the period of three months in place of one year. The rest of the order shall stand. Order accordingly. .