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Criminal Revision No. 1053 of 1959, decided on 25th April 1960.

S. 117‑Mere consent or readiness to furnish security‑Does not amount to plea of guilty‑Court not justified in binding over person on strength of such consent alone‑Criminal Procedure Code (V of 1898), Ss. 112 & 118.

A statement made by a person against whom security proceedings are taken, expressing willingness to give security should be recorded as nearly as possible in the‑ words used by him. Where the person sought to be bound over after denying the several charges contained in preliminary order nevertheless consents to give security, the consent cannot be construed to be a plea of guilty and the Court is not justified in binding him over on the strength of such consent alone.

Emperor v. Kurwa A I R 1928 All. 357 rel.

Crown v. Sheodan 24 P R 1915; Prem Singh v. Emperor A I R 1917 Lah. 304 and Ujagar Singh v. Emperor A I R 1929 Lab. 504 ref.

Aftab Husain for Petitioners.

Zaheer Abbas for Advocate‑General for Respondent.

Date of hearing : 25th April 1960.

This is a petition in revision by Haji Jalal and his party, consisting of five persons, against an order of the District Magistrate of Dera Ghazi Khan by which the petitioners' appeal was dismissed and the order of the trial Magistrate binding down the petitioners under section 118 of the Code of Criminal Procedure to keep the peace for a period of one year upheld.

2. The notice served on the petitioners shows that Haji Jalal's brother Ali Muhammad left a widow, Mst. Baghri who married one Piara and that Haji Jalal had a dispute with Piara both on account of his deceased brother's land and on account of the fact that Piara had refused to marry one of Ali Muhammad's daughters to Haji Jalal's son, as agreed to during the lifetime of Ali Muhammad. Notices were therefore, served both on Haji Jalal and his party on the one hand and Piara and his party on the other, and Piara's party agreed to execute bonds for keeping the peace. In the case of Haji Jalal and his party, when the notices were read out to them under section 113 of the Code, the question put to them was not whether there was any danger of a breach of the peace but whether they wished to execute bonds, or, in the alternative to produce defence. They replied that they did not wish to execute bonds and that they would produce defence. On the following day, however, each one of them stated that he did not wish to produce defence and that he was prepared to execute a bond. The Magistrate thereupon passed an order requiring them to furnish security to keep the peace.

2. In the grounds for revision the petitioners have stated that this willingness to execute bonds "was shown because on 9‑6‑1959, after the petitioners showed their intention to defend the case, the learned Magistrate did not accept the petitioners' bond and sent even Haji Jalal petitioner an elderly man, to the judicial lock‑up". Whether the statement is right or wrong, it is certainly remarkable that the petitioners should have changed their outlook on life in twenty‑four hours.

3. The order is challenged on the ground that it does not "conform to the requirements of section 117 of the Code, which says that when an order under section 112 has been read or explained under section 113 to a person present in Court, "the Magistrate shall proceed to enquire into the a truth of the information upon which action has been taken, and to take such further evidence as may appear necessary". Under section 118 "if, upon such inquiry, it is proved" that it is necessary for the person in question to execute a bond, the Magistrate shall make an order accordingly. Let me make it clear, however, that under section 117 (2) the inquiry is to be made, as nearly as may be practicable, where the order requires security for keeping the peace, in the manner prescribed for conducting trials and recording evidence in summons cases, and that under section 243, which occurs in the Chapter relating to the trial of summons cases, "if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as may be 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". The question put to him, however, was not whether he was going to commit a breach of the peace. If that had been the question, the answer that we should expect would have been, "I am not going to commit a breach of the peace, but if the Magistrate asks me to execute a bond, I am prepared to do so".

4. The view taken by this Court and by its predecessor Chief Court favours the petitioners' contention. In Crown v. Sheodan (25 P R 1915), where a District Magistrate submitted a similar case to the Chief Court and pointed out that "when the respondent admits on appearing before the Court that security is required there is no need to take evidence vide section 243, Criminal Procedure Code". Shah Din, J. pointed out that "the petitioner's statement before the Magistrate is not covered, by analogy, by section 243, Criminal Procedure Code" and that the petitioner had not admitted that he was likely to commit a breach of the peace.

5. In Frem Singh v. Emperor (A I R 1917 Lah. 304), Johnstone, C. J. observed‑

" when petitioner said he was willing to give a bond, did he mean he intended to break the peace Far from it he meant just the reverse. He obviously meant that he so little intended anything of the kind that he was ready, if asked, to execute a bond and provide respectable sureties well knowing the bond would never be enforced. None but a lunatic would say directly or indirectly to the Magistrate‑

"I admit I intend to break the peace. I cannot, therefore, resist the demand for security."

6. In Ujagar Singh v. Emperor (A I R 1929 Lah. 504), which was a case under section 110 of the Code and where a sub‑inspector of police had even made a statement in Court that the petitioner had a very bad reputation and that he associated with bad characters, Addison, J. relying on Sheodan and Prem Singh's cases, held that the mere statement that the petitioner was willing to give security was not sufficient to justify an order against him.

7. In Emperor v. Kurwa (A I R 1928 All. 357), which is an Allahabad case, a Division Bench observed that the question whether the state ment of a person expressing willingness to give security for good behaviour is in effect equivalent to a plea of guilty can be decided upon an examination of the particular facts only. In that case "the man had already flatly denied his guilt on every point", and had admitted only some previous convictions. On these facts, the High Court held that the plea for executing a bond did not amount to a confession.

8. This view, namely, that the accused's willingness to execute a bond should not be regarded as equivalent to a confession, I say with respect, has great merit in our present context where persons, on whom notices are issued under section 112, find it convenient and often necessary to show willingness to execute a bond for keeping the peace. It saves harassment, and it consequences are far less serious than those of a confession which is made under inducement, threat or promise. In the present case, I would have set aside the order in any case because I find that the District Magistrate has only signed an order which was written for him by his reader and, in the case of the trial Magistrate also, so far as I can see, the entire proceeding is recorded in the handwriting of the reader.

9. The petition is allowed and the order requiring the petitioners to execute bonds is set aside. A report should be, obtained from the two officers concerned as to whether it is correct that the proceedings and the orders were recorded by their readers.

K. B. A. Petition allowed.

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