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Criminal Revision No. 118 of 1959, decided on 17^th August 1959.

Ss. 110 do 117 (3)‑-Proceeding under S. 110‑Person proceeded against in Jail --Order under S. 117 (3) whether justified.

If the prosecution wishes to have recourse to the provision of section 117 (3), Criminal Procedure Code, 1898 on the ground of emergency, they should take steps when the matter first comes before the Magistrate to provide material before him to enable him to pass an order under that section.

Where, therefore, the persons proceeded against under section 110 of the Criminal Procedure Code, were safely in jail for sometime before their application for bail came to be considered and the Magistrate instead of hearing the bail application, passed an order under section 117 (3), Criminal Procedure Code, 1898 it was held that there was hardly an emergency which justified the taking of action under section 117 (3), Criminal Procedure Code, 1898.

Muhammad Hayat Junejo for Applicants.

H. T. Raymond, P. P. for Respondent.

Date of hearing: 17th August 1959.

On 8th November 1958, the Sub‑Inspector of Police, Kandiaro, sent up a complaint under section 110, Cr. P. C. against the present three applicants. Amongst the 3 accused named in the complaint Kirir was shown as an absconder and therefore only two persons; namely Khudabux and Khan Muhammad appeared before the Magistrate on 8‑11‑58 when the order under section 112, Cr. P. C. was passed. As the accused were not able to furnish security under the terms of the order on that day, they were sent to jail. On 25th December 1958, a bail application was made on behalf of all the three accused persons as Kirir had also appeared on 30th November 1958 and had been. likewise sent to custody. No action was taken by the learned Magistrate on that bail application on that day and it ultimately came up before him on 29th December when he issued notice to the Pro secuting Inspector for the hearing of the bail application. The case was then taken up on 3rd January 1959, when the learned Magistrate instead of deciding the bail application allowed the Police Sub‑Inspector to examine the two witnesses for the purposes of passing an order under section 117 (3), Cr. P. C. This became possible because the Sub‑Inspector in answer to the notice of the bail application had appeared on 3rd January with two witnesses evidently to press for an order under section 117 (3). The learned Magistrate examined those two witnesses and passed an order under section 117 (3) ordering the accused to furnish security in the sum of Rs. 5,000 with other conditions, pending the con clusion of the enquiry against them. Against this order the accused applied to the Sessions Judge, Nawabshah, under section 435 Cr. P. C. asking him to make a recommendation to the High Court for the quashing of the order of the learned Magistrate. The learned Sessions Judge, by his order dated 7‑2‑59, declined to make the recommendation, and hence this application to this Court. On this application being filed, my learned brother Wahiduddin, J. granted bail to the applicants by his order dated 9th March 1959 in the sum of Rs. 5,000 with two sureties in the like amount.

Mr. Junejo, the learned counsel for the applicants has con tended before me that in view of the circumstances of this case, the order under section 117 (3) was completely unjustified. He says that a case under section 110, Cr. P. C. is bailable and once an application is made under section 496, Cr. P. C. it leaves no choice to the Magistrate but to grant bail. He says that in this case the two accused had been sent to jail on 8th November 1958 and the third accused on 30th November 1958, and when the bail application did come to be heard by the learned Magistrate on 29‑12‑58 he should have passed an order granting bail instead of issuing notice to the P. I. on that application. He further con tends that when the P. I. did appear on 3rd January 1959, the learned Magistrate should have at least then passed an order on the bail application instead of proceeding with the examination of the two witnesses whom the Sub‑Inspector had chosen to produce on that day. This, he complains, give an appearance as if the bail application was being circumvented and thwarted by an attempted recourse to the provision of section 117 (3), Cr. P. C.

I have heard Mr. Raymond, the learned Public Prosecutor appearing for the State. He has tried to support the order of the learned Magistrate and the learned Sessions Judge on the ground that it was open for the Magistrate to enquire into the necessity for passing of an order under section 117 (3) on the ground of emergency and if he has done so upon the evidence before him, this Court should not interfere with that action. I regret I do not agree with the learned Public Prosecutor. In this case, the accused persons were safely in jail for sometime before their application for bail came to be considered. It seems to me that on that day there was hardly an emergency which justified the taking of an action under section 117 (3), Cr. P. C. Surely, if the prosecution, had thought of an emergency, they should have taken steps when the matter first came before the Magistrate to provide material before him to enable him to pass an order under that section. There is no doubt that it is the learned Magistrate, who had the jurisdiction to pass that order and if he had done so, as suggested above, there would have been no occasion to interfere with his order. But, in this case, the emergency was not considered emergent enough until the matter came to the point when the bail application had to be decided upon. It is quite true that the responsibility of maintaining law and order is upon the police who have to act sometime under difficult conditions, and that in the first instance it is the Magistrates who have to take action under the preventive provisions of the Criminal Procedure Code, but it is also not very uncommon in this part of the country to which the case relates that proceedings under section 110, Cr. P. C. are started as a convenient method of vindicating private feuds. In this particular case, as I have pointed out, the accused had been in jail, and therefore, did not present any problem of emergency so as to necessitate immediate action under section 117 (3). I, therefore, quash the order passed by the learned Magistrate under section 117 (3), Cr. P. C. It will be open to him if a motion is made by the prosecution, to examine the question of emergency afresh in terms of section 117 (3), Cr. P. C. and take such action as may be required.

For the reasons stated above, I allow the revision application.

K. B. A. /A. H. Application allowed.

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