Judgment Chaudhary Sia Saran Sinha, J. 1. This criminal revision arises out of an order dated the 19th February, 1969 of Sari D. N. Singh, Magistrate, First class, Pakur by which the petitioner has been ordered to execute a bond of rs.5,000/- with two sureties of Rs.5,000/- each, to be of good behaviour for a period of two years under section 158 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code ). 2. On the report of the officer-in-charge of Maheshpur police station in the district of Santal Parganas, the Sub-divisional Officer, Pakur, started a proceeding against the petitioner under section 110 of the Code and asked him to show cause why he should not be ordered to execute a bond of Rs.5,000/-with two sureties of the like for maintaining good behaviour for a period of three years. The main allegations in the police report were that the petitioner was so desperate and dangerous that it would be hazardous to the community to keep him at large without security, inasmuch as he was in the habit of harassing people and involving them in cases as also in other ways. He used to support men of bad character who were members of his gang and was himself involved in several criminal cases. 3. On a show cause notice being issued to the petitioner, he showed cause denying the allegations against him. 4. In support of the allegations, 64 witnesses were examined on behalf of the prosecution and seven witnesses on behalf of the petitioner. The latter also filed a good number of documents, primarily to show that he was a substantial man of means. 5. On a consideration of the entire evidence, the Magistrate came to the conclusion that the petitioner was of desperate character and terror to the society, and it was necessary that security should be taken from him for his good behaviour. Ultimately, he passed the impugned order ordering the petitioner to execute a bond of Rs.5,000/- with two sureties of 5,000/- each to be of good behaviour for a period of two years under section 118 of the Code by the 27th February, 1969. The Magistrate further ordered that if the petitioner failed to execute the bond by the date fixed, he would be committed to the prison to undergo rigorous imprisonment for two years as provided in section 123 of the Code. The Magistrate further ordered that if the petitioner failed to execute the bond by the date fixed, he would be committed to the prison to undergo rigorous imprisonment for two years as provided in section 123 of the Code. 6. The petitioner took the matter in appeal, and the learned Additional sessions Judge, Dumka, came to the conclusion after a scrutiny of the evidence that the petitioner habitually commits various types of crimes including mischief and extortion, and his acts are also such as are likely to cause breach of the peace. He also found that the petitioner was a terror to the people of the locality, and he was so desperate and dangerous that it would be hazardous to the community to keep him at large without security. He, therefore, agreed with the order of the Magistrate demanding execution of a bond in the manner stated above. As regards the subsequent portion of the impugned order of the magistrate, namely, the order of the petitioner to undergo rigorous imprison mem for two years on his failure to execute the bond by the 27th February, 1969, the same did not appear to the Additional Sessions Judge, to be strictly legal. He has, however, stated in his judgment that he is regularising and confirming the same under sub section (3) read with sub-section (3-B) of section 123 of the Code. With these findings and observations, he dismissed the appeal which has given rise to this revision. 7. Learned Counsel for the petitioner attacked the impugned order of both the courts below as bad, both in law and on facts on the various contentions that I shall shortly discuss hereinafter. The first contention was that the detention in prison can be ordered only until the period for which security is demanded or until within such period the person proceeded against does not give the security demanded. The first contention was that the detention in prison can be ordered only until the period for which security is demanded or until within such period the person proceeded against does not give the security demanded. Sub section (1) of section 123 of the Code provides that "if any person ordered to give security under section 106 or section 118 does not give such security on or before the date on which the period for which such, security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the court or Magistra e who made the order requiring it. " It would thus appear that the person ordered against can be committed to prison until the period for which he was required to give security expires or until within such period he furnishes the necessary security. It is evident from this that no person can be committed to prison if he furnishes the security required of him. Thus, the proper order in such a case should be for detention for the period for which the security was demanded or until such date within the period by which the required security was furnished. This the Magistrate has not done, and, therefore, the order passed by him that if he fails to execute the bond by a particular date fixed, he will be committed to prison as provided under section 123 of the Code cannot but be regarded as illegal, and the learned counsel for the State very reasonably conceded to this legal position. 8. The next contention raised on behalf of the petitioner was that since the petitioner was ordered to give security for a period of two years, the Magistrate instead of himself passing the order for detention in prison on the failure of the petitioner to furnish security, he should have referred the case to the Sessions Judge under the provisions of sab-section (2) of section 123 of the Code, and, be having not done so, the last portion of the order quoted above becomes illegal. Sub-section (2) of section 123 of the Code provides that "when such person has been ordered by a Magistrate 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 or, if such Magistrate is a Presidency Magistrate, pending the orders of the High court ; and the proceedings shall be laid, as soon as conveniently may be, before such court. " As the language of this sub-section shows, these provisions are imperative. According to this provisions, where a Magistrate demands security for a term exceeding one year, if such person does not give such security, he is empowered only to issue a warrant directing the said person to be detained in prison pending the orders of the Sessions Judge and to submit the proceeding to such court as possible for order. The order fixing the term of imprisonment which the person proceeded aginst is to undergo on default of furnishing security, in such a case is to be made by the Sessions judge and not by the Magistrate. In the case of Baso Rai and others V/s. King-Emperor, (1947) 48 Criminal Law Journal 409, it was held by this Court that where an order required a person to furnish security and included in the same order a direction that in default he should suffer rigorous imprisonment for two years, the order directing that the person should suffer rigorous imprisonment was invalid. It was, however, held in this case that this invalidity did not affect the order calling upon to furnish security, and further that if there was any defect in the earlier order on account of the failure of the Magistrate to specify the date by which the security was to be furnished, the Magistrate could repair that omission by his later order. Obviously, therefore, the order of the Magistrate committing the petitioner to undergo rigorous imprisonment for two years is illegal and invalid. 9. Learned counsel for the State, however, contended that the latter part of the order of the Magistrate, referred to above, having been regularised and confirmed by the Additional Sessions Judge, the illegality, as pointed out above, should be deemed to have been and. This contention cannot be upheld. 9. Learned counsel for the State, however, contended that the latter part of the order of the Magistrate, referred to above, having been regularised and confirmed by the Additional Sessions Judge, the illegality, as pointed out above, should be deemed to have been and. This contention cannot be upheld. It is true that the powers of the Sessions Judge on a reference as contemplated under sub-section (3) of section 123 of the Code are wide, and he can pass such orders in the case as he thinks fit subject to the proviso to that sub-section, but this provision cannot override the provisions of subsection (1) of section 123 which specifically provides the period of detention in jail as the period for which the security is demanded or the period till the person proceeded against gives the security. The provisions of sub-section (1) of section 123 and those of sub-section (3) of that section should be read harmoniously and keeping in view the provisions of sub-section (4)of that section, which lays down that "if the security is tendered to the offlcers-in-charge of the jail, he shall forthwith refer the matter to the court or Magistrate who made the order, and shall await the orders of such court or Magistrate". Sub-section (2) of section 123 of the Act has a reference only to a case where default is made in furnishing security. If the security is given, the section does not apply and no reference to the court of session is necessary even if the term of security exceeds one year. This being the position subject to the provisions of the proviso to sub-section 3 of section 123 even a Sessions Judge on a reference being made to him under sub-section (2) of section 123 of the Code cannot pass an order contrary to the provisions of sub-section (1) of section 123 and order for detention in jail of the person proceeded against even after his furnishing proper and valid security in accordance with law, after he is committed to detention in prison. Lastly, che proceedings submitted on reference under sub-section (2) of section 123 of the Code are not in the nature of appeal and on such reference the whole case is intended to be dealt with by the Sessions Judge as a court of first instance and the order passed by him is a separate and substantive order by the court of session and not a mere confirmation of the Magistrates order. The reason is that the Magistrate cannot pass an order of imprisonment in cases which he has to refer, nor can he submit such an order so passed by him for confirmation. In such a case, the warrant following the order of the Sessions Judge should proceed from the sessions court itself and the sessions Judge cannot ask the Magistrate to issue warrant of arrest for committing to prison. 10. There is another aspect of the matter also. The Additional District and Sessions Judge passed the order regularising and confirming the latter part of the impugned order in the appeal preferied by the petitioner and not on a reference made under sub-section (2) of section 123 of the Code. Subsection (3-B) provides that "a Session Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (3-A)to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings". It was contended that no reference having been made under sub-section (2) of section 128 of the Act and there being no order of such transfer by the Sessions Judge to the Additional Sessions Judge, it cannot be possible to bring the instant case within the purview of sub-section (3-B)of section 123 of the Code. This argument is not without substance. It is, however, not necessary to decide this point for disposal of this criminal revision. 11 In these facts and circumstances, the illegality in the impugned order of the Magistrate, as pointed out above, cannot be removed, by the order of the Additional Sessions Judge regularising and confirming the same in the manner stated in this impugned order. 12. It is, however, not necessary to decide this point for disposal of this criminal revision. 11 In these facts and circumstances, the illegality in the impugned order of the Magistrate, as pointed out above, cannot be removed, by the order of the Additional Sessions Judge regularising and confirming the same in the manner stated in this impugned order. 12. In these circumstances, the last portion of the order of the Magistrate to the effect that if he fails to execute the bond by the date fixed, he will be committed to prison to undergo rigorous imprisonment for two years as provided under section 123 of Code is set aside as illegal. The observations of the Additional District and S ssions Judge in his impugned order regularising and confirming that part of the order of the Magistrate cannot also be said to be in accordance with law and consequently it has no legal effect. 13. As to the merits of the order demanding security from the petitioner by the Magistrate, which has been maintained by the Additional sessions Judge, the petitioner is faced with the concurrent findings of fact by the courts below. The question whether it is necessary in the interest of keeping peace to take security from a person is essentially a question which primarily concerns the Magistrate and the local police. It is well settled that the High Court sitting in revision would not ordinarily constitute itself as a court of fact though it would interfere in revision on grounds, inter alia, that the order passed is based on no evidence on the record, or on the ground of insufficiency of the material to support the order as also on the ground of the failure of the Magistrate to give due effect to the evidence adduced on behalf of the defence. In the instant case, on going through the evidence adduced in this case, it appears that the ordt rs of the two courts below regarding the demand of security for good behaviour are based on a proper appraisal of evidence and there is no reason or justification for interfering with the concurrent finding of the courts below. 14. In the instant case, on going through the evidence adduced in this case, it appears that the ordt rs of the two courts below regarding the demand of security for good behaviour are based on a proper appraisal of evidence and there is no reason or justification for interfering with the concurrent finding of the courts below. 14. Learned Counsel for the petitioner submitted that though 64 witnesses were examined on behalf of the prosecution only two of them were named in the police report and thus 51 of the witnesses mentioned in the police report have not been examined. That appears to be so, but the last portion of the police report itself stated that besides the persons named in the list, there were a large number of persons of the aforesaid villages and other villages who were ready to depose against the petitiorer. Thus, if those witnesses who were examined on behalf of the prosecution were readily available, no objection can be taken to their examination simply on the ground that they were not named in the police report, particularly when as it appears from the order of the trial court that they are competent and dependable witnesses. It was also the contention by the learned Counsel for the State that desperate as the petitioner has been found to be by the two courts below, the non-examination of the witnesses named in the report may be on account of those witnesses being terrorised by the petitioner. Another criticism of the learned counsel for the petitioner was that due weight has not been given to the evidence of the witnesses examined on behalf of the defence, who were seven in number. Most of these witnesses deposed on the point of the petitioner being a wealthy person paying income-tax and other taxes, and this has been discussed in the last but one paragraph of the order of the Magistrate. Instances where a wealthy person may fall victim to bad company are not wanting, and, thus, if there is overwhelming evidence in this case to support the allegations levelled against the petitioner, the same cannot be brushed aside merely on the ground that, as stated by the witnesses for the petitioner, he is a wealthy and substantial man. Instances where a wealthy person may fall victim to bad company are not wanting, and, thus, if there is overwhelming evidence in this case to support the allegations levelled against the petitioner, the same cannot be brushed aside merely on the ground that, as stated by the witnesses for the petitioner, he is a wealthy and substantial man. Pointing to the discussion as made in paragraphs 20, 21 and 22 of the judgment of the additional Sessions Judge, the criticism was that some of the arguments were not convincing. Even if that be so, the other aspects of the evidence discussed therein clearly support the conclusion of the Magistrate arrived at by him and confirmed by the Additional Sessions Judge which clearly brings the case of the petitioner within four corners of section 110 of the code. No other contention having been raised before me, I am of the opinion that the order of the Magistrate ordering the petitioner to execute a bond of Rs 5,000/- with two sureties of Rs.5,000/- each, to be of good behaviour for a period of two years is legal and valid and has rightly been confirmed in appeal by the Additional District and Sessions Judge. 15. The result is that the orders of the courts below directing the petitioner to execute a bond of Rs.5000/- with two sureties of Rs, 5,000/-each, to be of good behaviour for two years under section 123 of the Code of Criminal Procedure are held to be legal and in order ; but the order of the Magistrate that in case of failure of the petitioner to execute a bond he will be committed to prison to undergo rigorous imprisonment for two years as provided under section 123 of the Code is set aside as illegal. It will be open to the trying Magistrate or his successor-in-office, as the case may be, to proceed in accordance with the provisions of sub-section (2) of section 123 of the Code on the failure of the petitioner to execute the bond within a reasonable time to be allowed by him to the petitioner for the same, and, on doing so, the Sessions Judge will dispose of the matter in accordance with law keeping in view the observations made above. 16. The criminal revision is partly allowed to the extent indicated above and is disposed of accordingly. Revision partly allowed.