Find a Lawyer

Criminal Revision Nos. 22 and, 23 of 1950; decided on 24th May 1950, from the order of the Assistant Commissioner (Revenue), dated 17th October; 1949.

Ss. 112 and 113 Failure to comply with‑Proceedings before ‑Magistrate held illegal.

The Magistrate's failure to comply with the imperative provisions of sections 112 and 113, Criminal Procedure Code, renders the proceedings of the Magistrate illegal.

The order requiring the respondents to execute a bond under section 109, Criminal Procedure Code cannot therefore be maintained.

36 All. 262 and 11 Cal. 13 ref.

Two challans under section 109, Criminal Procedure code, Crown v. Sultan tend Crown v. Ghulam Qadir were presented by the Police in the Court of Mir Maqsood, Ali, Assistant Commissioner (Revenue) exercising the Powers of Magistrate, 1st Class. The learned Magistrate without proceeding under sections 112 and 113 of the Criminal Procedure Code directed each of the accused on the 17^th October, 1949 to execute a bond for Rs. 1,000 to maintain good behaviour and in default to under‑go simple imprisonment for the period of one year. Both the files have been cent by the record Office, that the Magistrate has failed to comply with the provisions of sections 112 and 113 of the Criminal Procedure Code. The learned Magistrate was called upon to render explanation. His explanation is manifestly unsatisfactory. Section 112 of the Criminal Procedure Code lays down:

"When a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under such section, lie shall make an order in writing, setting fourth the substance of the information. received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required ".

Section 113 reads:

"If, the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him "

Section 118 is to the effect:

"If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case nay that the person in respect of whom the inquiry is .made should execute a bond, with or without sureties the Magistrate shall make an order accordingly Provided‑

First, that no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 112 It is now clear from sections 112 and 113 that the Magistrate should under section 112 have made an order in writing setting forth the substance of information received, the amount of the bond to be executed, the terms for which it was to be in force, and the number, character and class of surety required. That order should then and there have been read over and explained to those persons under section 113. The Magistrate in his explanation admits that he had not acted under: section 12 of the Criminal Procedure Code. He however says that as the persons were present before him hence he verbally explained to the that they were challaned by the Police under section 109 of the Criminal Procedure Code. I could not find material on both the files to support the explanation of the learned Magistrate. Though his explanation could not render his proceedings valid, yet his failure to comply with the imperative provisions' of sections 112 and 113 rendered .the proceedings of the Magistrate illegal. Clause I of section 118 of the Criminal Procedure Code clearly lays down that:

.

"none of those persons could be ordered to gave security of, a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 112

When there was no order under section 112, the Magistrate was incompetent to make his final order under para. I off section 118. See in this connection 36 All., p. 262 and 11 Cal., p. 13.

The orders of the Magistrate being opposed to the law cannot be maintained. I, therefore, in my revisional powers set aside the orders and release Sultan and Ghulam Qadir. Their detention had been illegal and they have been detained about more than seven months. It would be unjust in the present circumstances to order their retrial. They should be released if not wanted in any other case.

[The rest of the judgment is not material for the, purpose of this report].

R.M.A. Order held illegal.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.