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Criminal Revision No. 493 of 1961, decided on 15th December 1961

Ss. 110, 530 & 537‑Proceedings under S. 110 drawn up by Sub‑Divisional Magistrate but later transferred to Magistrate, First Class not specially empowered to deal with matter‑Proceedings before transferee Magistrate, held, illegal‑Irregularity not curable under S. 537‑Criminal Procedure Code (V of 1898), S. 192.

Ss. 118 & 110 Simultaneous order under S. 118 to execute bond and in default suffer imprisonment cannot be made.

(1955) 7 D L R 98 ref.

‑Ambiguity‑Benefit of, must be given in favour of subject and against Legislature.

Shafiqur Rahman for Petitioner.

A. K. M. Sidique for the State.

In this case a Rule was issued on the Deputy Commissioner of Comilla to show cause why an order under section 118 of the Code of Criminal Procedure directing the petitioner to enter into a bond of Rs. 300 with two local sureties of like amount each, to be of good behavior for a period of one year with effect from 12‑12‑60 and in default to suffer rigorous imprisonment for one year should not be set aside.

2. The case for the prosecution is that the petitioner was by habit a thief, robber and a house‑breaker and that he was so desperate and dangerous as to render his being at large without security hazardous to the community. The petitioner was, therefore, on 27‑5‑60 taken into police custody and on 3‑6‑60 a report was submitted to the Sub‑Divisional Officer, Brahmanbaria for taking action against him. The Sub‑Divisional Magistrate, thereafter drew proceeding under clause (a) and (f) of section 110 of the Code of Criminal Procedure and directed him to show cause as to why he should not be ordered to execute a bond of Rs. 300 with two local sureties of a like amount to be of good behavior for a period of 3 years. No cause was, however, shown by the petitioner. . The case was then transferred to Mr. M. A. Mutalib, Magistrate 1st Class who held an enquiry into the allegations at Kashba Dak Bunglow and examined as many as 51 witnesses for the prosecution and 3 for the defence.

3. The defence of the petitioner is that since migration of his father‑in‑law to Pakistan in 1953, he was living with his father‑in‑law in a village called Bayek. Petitioner's wife was the only daughter of his father‑in‑law who acquired valuable landed properties in the locality and the petitioner was looking after the same owing to old age of his father‑in‑law and he was victim of jealousy and ill‑feeling. On a consideration of the evidence of the prosecution as well as the defence, the learned Magistrate came to the following finding: --‑

"I find from the evidence that this accused is a thief by habit and has been in corrigibly addicted to theft and moves about with notorious dagis of the locality and is so dangerous and desperate in character as to render his being at large without security hazardous to the comities."

An appeal preferred by the petitioner to the learned Additional Sessions Judge, Comilla, having been dismissed, the petitioner invoked the revisional jurisdiction of this Court and obtained this Rule.

4. When this matter came up for hearing on 29‑11‑61, Mr. Shafiqur Rahman, learned Advocate for the petitioner, asserted that the Magistrate who passed the impugned order was not specially empowered to deal with these matters as required under section 110 of the Code of Criminal Procedure. He searched civil list but did not find the name of the Magistrate among those authorised to deal with these proceedings. As no one appeared for the State, notice was served on the learned Deputy Legal Remembrancer for representation of the State in the matter. In compliance with the said notice, Mr. A. K. M. Siddique appeared for the State and informed me that the proceedings were drawn by the Sub‑Divisional Magistrate but after issuing a show‑cause notice on the petitioner he transferred the case to Mr. Muttalib, a Magistrate of the First Class who held the inquiry and made the impugned order. Although he was Magistrate, First Class, he was not specially empowered to deal with these matters as contemplated under section 110 of the Code of Criminal Procedure.

5. Mr. Siddique, learned Advocate for the State submitted that although Mr. Muttalib who held the enquiry was not a Magistrate especially empowered to deal with these matters, the proceedings were drawn by a Sub‑Divisional Magistrate who was one of the class of Magistrates mentioned in the section and the subsequent transfer did not render the proceedings illegal. In support of his contention he drew my attention to the provisions of section 192 of the Code of Criminal Procedure which authorised a Sub‑Divisional Magistrate to transfer any case to any Magistrate subordinate to him.

6. On a reading of section 110 of the Code of Criminal Procedure it seems to me that only the particular Magistrate mentioned in the said section may receive information s contemplated in the said section and issue show‑cause notice. The concluding part of section 110 is as follows :‑

" . . . such Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond for his good behaviour for such period, not exceeding three years as the Magistrate thinks fit."

The words "such Magistrate" and "in manner hereinafter provided" are significant and indicative of the intention of legislature that subsequent provisions relating to these procee dings can be taken only by the Magistrate mentioned in the section. Section 117 of the Code which relates to an enquiry as to the truth of the information upon which action has been taken specially speaks of an order made under section 112 which in its turn refers to 110 of the Code of Criminal Procedure. It, therefore, seems that the scheme of the law is that matters of this kind shall be dealt with a person specially empowered as provided in section 110.

7. The words "if upon such enquiry" occurring under section 118, again in turn refers to an enquiry under section 110 of the Code of Criminal Procedure. These provisions are therefore related with each other, and only the particular Magistrates mentioned in section 110 of Code are contemplated) in section 118 of the Code. The learned Advocate for the State further argues that this is merely an irregularity curable under section 537 of the Code of Criminal Procedure. This contention of the learned Advocate for the State is untenable in view of section 530 of the Code relied on by Mr. Rehman. Material part of section 530 of the Code is as follows: --‑

"S. 530. If any Magistrate not being empowered by law in this behalf, does any of the following things, namely . . . . . . . . (c) demands security for good behaviour . . . . . . his proceedings shall be void."

The clear provision under section 530 must be given effect to. The learned Advocate for the State frankly submitted that the contention he was making was not free from doubt and the language of the section was not clear. If the language of a section of the Criminal Procedure Code is not clear the position is well recognised in law. The benefit of ambiguity must always be given in favour of the subject and against the Legislature which failed to explain itself clearly. I am however of opinion that language of the section fully supports the petitioner without any ambiguity whatsoever.

8. The learned Advocate for the petitioner has also argued that there cannot be a simultaneous order to execute bond and in default suffer imprisonment. He is on this point supported by a Division Bench decision of this Court, reported in 7 D L R 98. Section 123(1) of the Code makes it clear that a Court at the lc first instance is to fix a date for security and in case of default on that date, the Court may order imprisonment. This conten tion of the learned Advocate has also substance. The order made by Mr. M. A. Mutallib is set aside and the case is sent back to the Sub‑Divisional Magistrate of Brahmanbaria to proceed with the case from the stage at which it was transferred to Mr. Mutallib. The Rule is accordingly made absolute.

K. B. A.

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