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Criminal Miscellaneous No. 75 of 1964, decided on 26th October 1964.

Ss. 107, 108, 109 & 110 read with S. 118‑Object of taking security‑Preventive and not punitive‑Duty of Magistrate‑Amount of bond to be fixed judiciously and not arbitrarily.

In proceedings under Chapter VIII of the Criminal Procedure Code, 1898 the object of taking security is not punitive or to collect revenue for the Government. Action taken under the various provisions of the Chapter being preventive in its nature the amount should be fixed, as enjoined by the proviso to section 118 of the Code, so as to make it possible for the person bound down to comply with the order without incurring heavy expenses or being faced with the prospect of going to jail. As the orders demanding security under Chapter VIII inevitably result in curtailment of liberty of the subject and which also vest extraordinary powers in the police and the Magistrate, it is the bounden duty of the Magistrates to exercise their discretion in fixing the amount of security or number of sureties judiciously and with utmost caution and not arbitrarily, whimsically or fancifully.

Allahdito and others v. Emperor A I R 1925 Sind 321 ref.

Ss. 118 & 122‑Magis trate demanding, under S. 118, amount of security beyond means of person bound down; or requiring Tehsildars to verify security bonds; or requiring police to report on suitability or otherwise of surety to such bond‑Practice, held, wholly illegal and strongly depre cated‑Stern warning administered to Magistrates following such course or practice in future‑Criminal Procedure Code (V of 1898), Ss. 107, 108, 109 & 110.

Queen‑Empress v. Prithi Pal Singh (1898) A W N 154; Emperor v. Tota I L R 25 All. 272 ; Jhoja Singh v. Queen Empress I L R 24 Cal. 155 and Emperor v. Balwant I L R 27 All. 293 ref.

S. Usman Ali Shah for Petitioner.

Sher Bahadur Khan, A. A.‑G. for the State.

Date of hearing : 7th September 1964.

This order would govern Rules issued in Miscellaneous Applications Nos. 73 and 75 of 1964, as identical questions of considerable importance are raised requiring determination. These applications are directed against the two separate orders recorded on 1‑4‑64 by the Assistant Commissioner, Nowshera, exercising the powers of a Magistrate 1st Class, under which he directed the parties to execute security bonds in a sum of Rs. 20,000 with two sureties in the like amount each to keep the peace for a period of one year or in default to suffer one year's S. I. under section 107, Cr. P. C.

2. The facts culminating in Miscellaneous Application No. 75 of 1964 briefly are that the Pabbi Police challaned, the five applicants as party No. I and six others, namely, Hastam Khan, Aminullah, Habibullah, Azam Khan, Qadar Khan and Saadat Khan as party No. 2, under section 107/151, Cr. P. C. Notices under section 112 of the Cr. P. C. were served upon them who expressed their willings to be bound down. After recording the statement of Hisar Gul, A. S. I., Akbarpura, that a breach of peace was apprehended as the result of a dispute over a shop and landed property between the parties, the learned Magistrate on 1‑4‑64 passed an order in the following terms :‑

"I, therefore, order the respondents named above of both the parties to execute security bonds in Rs. 20,000 with two sureties of the like amount each to keep the peace for a period of one year or in default to suffer one year's simple imprison ment under section 107, Cr. P. C."

3. The learned Magistrate accepted the security bonds offered by the party No. 2, namely, Hastam Khan, Aminullah, Habibullah, Azam Khan, Qadar Khan and Saadat Khan, etc. him self on that very day but in the case of applicants required their security bonds to be attested by the Tehsildar, who did so on 2‑4‑64 on the strength of extracts from Jamabandi "fards" relating to the land of sureties. The security bonds thus verified by the Tehsildar were placed before the Magistrate on 7‑4‑64 who recorded the following order

"Police to verify."

4. In Miscellaneous Application No. 73, Maulvi Ahmad and Din Muhammad, respectively, of village Tarkha and village Khushmuqam, Police Station Pabbi, were proceeded against under section 107/151 on a complaint lodged on 21‑3‑64 as a reprisal of the complaint instituted on 18‑3‑64 against three persons, namely, Shad Muhammad, Fazal Muhammad and Nazar Muhammad. The learned Magistrate passed an order on 1‑4‑64 directing the applicants to furnish security bonds in a sum of Rs. 20,000 with two sureties each, for a period of one year, or in default to suffer one year's S. L, but in the case of the rival party he directed by his order dated 15‑4‑64 that they were required to furnish security bonds in a sum of Rs. 5,000 with two sureties in the like amount each. Not only this but in their case the Magistrate also obliged them by attesting their bail bonds himself on that very day. When it came to attest the bonds of the applicants who had been required to furnish bail bonds of an amount four times higher than their adversaries the Magistrate thought it fit to crown his earlier inequitous order by directing, as in the case of applicants in Miscellaneous Application No. 75, that the security bonds offered by them should be attested by the Tehsildar. When the applicants produced the security bonds duly attested by the Tehsildar to the Magistrate on 7‑4‑64 he passed a similar order to that which he had made in the Miscellaneous Application No. 75, namely, "police to verify".

5. It was in this context that on 17th April 1964 applica tions (Nos. 73 and 75) were moved on behalf of the applicants by their counsel S. Usman Ali Shah under section 561‑A/439, Cr. P. C. praying that in order to "prevent the abuse of process of the Court, it is humbly prayed that the bail bonds be got attested by the Assistant Commissioner, Nowshera". It will be convenient here to reproduce paras. 3 to 6 of the applications, which are in almost identical terms and read thus :‑

(3) That on submission of the required bail bonds the learned Assistant Commissioner endorsed the same to the Tehsildar, Nowshera for verification of the property of sureties.

(4) That on 7‑4‑64 the said bail bonds duly verified by the Revenue Officer along with the "fards" showing the property of the sureties were produced before the Assistant Commissioner, but the same were not attested by him and were subsequently marked on to the police for further verification of the property.

(5) That the local police is not the competent authority to verify the said documents.

(6) That the learned Assistant Commissioner with no other purpose but to keep the persons in jail for an indefinite period, has purposely refused the attestation of the bonds, which were complete in all respects arid ordered their re‑verification by the police.

6. The applications were fixed for hearing before me on 20‑4‑64 on which date I directed that tic security bonds in both the applications which were duly verified by the Tehsildar should be placed en record and the applicants directed to be enlarged on bail. I further directed that notice be issued to the State to consider (1) the propriety and legality of the practice under which the security bonds were sent to the Tehsildar for verification and the police was required to report or comment on the suitability of the sureties and (2) to consider whether the security amounts demanded in the instant cases were "excessive".

7. After hearing S. Usman Ali Shah, learned counsel for the applicants, Mr. Sher Bahadur Khan, Additional Advocate General for the State, and perusing the record it is indeed gravely disquieting to note that the learned Magistrate instead of treating the parties before him in both these applications on a basis of perfect equality as required by law and judicial sense of propriety, should instead have conducted himself as a blatant partisan which not only resulted in a serious miscarriage of justice in the case of the applicants but also entailed their wrongful detention for a period of about 16 days. In other words; by the highly discrimi natory treatment meted out to the applicants in both the applications in requiring the Tehsildar to attest their security bonds and after proper attestation by him to require the police to verify the same and demanding an excessive amount of security namely, Rs. 20,000 as against the amount of Rs. 5,000 in the case of the rival party, the learned Magistrate has not only done injustice to the applicants but has demonstrated in no uncertain terms for any one to see that injustice has "undoubtedly and manifestly been done" in contradistinction to the maxim that "justice should not only be done but should be manifestly seen to be done". The action of the Magistrate in the circumstances of the case can only be aptly described as scandalous. I hasten to add that such a procedure is bound to seriously impair and undermine the confidence of the litigant public in even‑handed dispensation of justice and is bound to produce a sense of despair, and frustration, and no greater mischief than that can be imagined.

8. A large number of cases have come to my notice which are marked by complete disregard of the mandatory provisions of Chapter VIII, in particular the provisions of sections 118 and 122 of the Criminal Procedure Code. I have noted with regret the tendency on the part of some of the Magistrates who, contrary to the second proviso to section 118, which specifically enjoins on them that "the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive" generally fix the amount of security too high to be within the means of the person required to furnish the security, with the result that the person bound down is coerced into paying exorbitant amounts not only for procuring the required security bonds but getting it through at various stages.

9. It is deeply perturbing to record that there are complaints, with few honourable exceptions, that the Naib Courts and some of the subordinates of the Magistrates, i.e., Readers and Muharrirs, are to be paid substantial amounts before the security bonds are accepted. It is indeed alarming that some of the Presiding Officers of the Court should be suspected of complicity in this practice by shutting their eyes to the illegal tips which are exacted under their very noses or still worse that these illegal tips should be taken with their connivance.

10. The Magistrates should remember that the object of taking security is not punitive or to collect revenue for the Government; the section being preventive in its nature the amount should be fixed, as enjoined by the aforesaid proviso to section 118, so as to make it possible for the person bound down to comply with the order without incurring heavy expenses o being faced with the prospect of going to jail. As the orders demanding security under Chapter VIII inevitably result in, curtailment of liberty of the subject and which also vest extra ordinary powers in the police and the Magistracy, it is the bounden duty of the Magistrates to exercise their discretion in fixing the amount of security or number of the sureties judiciously and with utmost caution and not arbitrarily, whimsically or fancifully (as has been done in the cases in hand). If, (in the words of Kennedy, A. J. C., reported in Allahdito and others v. Emperor (A I R 1925 Sind 321) it is not to form an instrument of intolerable oppres sion it must be worked with the utmost discretion."

11. It is disconcerting to note that some of the Magistrates, contrary to the clear provisions of section 122 of the Criminal Procedure Code, require verification of security bonds by Tehsildars or reports on the suitability of the sureties from police. It would be convenient here to read the Proviso to section 122 Cr. P. C., which runs as follows:

"Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him."

It will be manifest from the language of the above provision that the practice of requiring the Tehsildar to attest the security bonds or requiring the police to report on the suitability or otherwise) of the surety to the bond is not at all envisaged by the said Proviso, but on the other hand it makes it obligatory on the Magistrate that he shall himself hold an inquiry on oath into the fitness of the surety or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him. Though the Proviso permits the Magistrate to "cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him," yet this procedure should be resorted to only in a very exceptional case when the Magistrate concerned is very much overworked and should not be made a matter of routine. The provision requiring such inquiry to be held and a report to be made thereon by the Magistrate subordinate to him was introduced in the year 1923.

12. It is indeed highly regrettable that in spite of a long chain of authorities dating as far back as 1898, Queen‑Empress v. Prithi Pal Singh ((1898)A W N 154) also see Emperor v. Tota (I L R 25 All.272) in the matter of Jhoja Singh v. Queen‑Empress (I L R 24 Cal. 155) and Emperor v. Balwant (I L R 27 All. 293) deprecating the practice of delegating to another the duty of inquiring into the sufficiency of the security tendered and emphasising that "such inquiry must be made by the Magistrate, who cannot send the security bond to a Tehsildar for a report", see Kong‑Emperor v. Kaim Khan (No. 18 P. R.) some of the Magistrates persist in this wholly illegal practice of requiring the Tehsildars to verify the security bonds or the police to comment on the suitability of the security even when duly attested by the Tehsildar.

13. It is, however, gratifying to note that Mr. Sher Bahadur Khan, A. A.‑G. with his usual fairness instead of attempting to defend the procedure adopted by the learned Magistrate con ceded that the practice of requiring the Tehsildar3 to verify security bonds or the police to comment on the suitability of the sureties duly verified by Tehsildars was highly objectionable. He also readily conceded that the amount of security and number of sureties should be fixed, regard being had to the financial position of the person ordered to the bound down.

14. It follows from the above discussion that the amount in regard to furnishing of security of Ids, 20,000 with two sureties each in the case of the applicants in both the applications is highly excessive. I accordingly reduce the amount of security to Rs. 2,000 with two sureties each in the case of all the applicants in both the applications and the security bonds already furnished should be taken to be for Rs. 2.000 eac11 instead of Rs. 20,000.

15. Before I take leave of the case, I wish to record my strong disapproval of the manner in which the cases under discussion were dealt with by the learned Magistrate. I wish to emphasize on the Magistrates who are called upon to take proceedings under Chapter VIII the importance of strictly con forming to the procedure laid down in that Chapter, in parti cular, (i) the procedure enjoined by section 118 in regard to demanding of the security which should be within the means o c the person bound down and in no case be excessive, and (ii) the discontinuance forthwith of the illegal practice of requiring Tehsildars to verify security bonds or to require the police to report on the suitability of such bonds. The Magistrates should realize that the liberties of the subject are of so fundamental importance under the Constitution that they cannot be toyed with by them in such a casual and illegal manner. I would wind up the judgment with the warning that after the publication of the judgment any disregard to the provision of section 118 (by demanding excessive amount of security not within the means of the person bound down) and section 122, Cr. P. C. (by requiring the Tehsildars to verify the security bonds or police to report after such verification or without verification) would render the Magistrates concerned liable for stern action. The District Magistrates, who are directly responsible for the supervision of the Magistrates' work and to whom alone appeals demanding security lie, should keep a watchful eye on them and report to this Court the conduct of the Magistrate who in future disregards the provisions referred to above.

16. The preceding paragraph of this judgment should be brought to the notice of all the Magistrates within the jurisdiction of the Peshawar Bench, through the District Magistrates.

K. B. A. Order accordingly.

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