A.D. Dunne vs Hem Chandra Chowdhary and Another <BR> Behari Patak Vs Mahomed Hyat Khan <BR> Government Vs Behari Lal Brajabasi

Glover, J.—This reference involves the consideration of two somewhat different questions. The first (referred by Loch, J.) is, whether when a party is summoned to show cause u/s 282, Code of Criminal Procedure, why he should not be called upon to enter into recognizances to keep the peace, the Magistrate can make an order directing him to enter into the "bond, until be has adjudicated judicially upon evidence properly given, that be is satisfied that it is necessary for the preservation of the peace to take such bond."

The second (referred by JACKSON and MARKBY, JJ.) is whether when a Magistrate has issued a summons upon credible information u/s 282, calling upon a party to show cause why he should "dog be required to enter into a bond to keep the peace, be may, upon the party appearing and failing to satisfy the Magistrate that there was no occasion to bind him over, without taking further evidence, act upon his previous information and make an order u/s 288."

I am of opinion a (an opinion come to with much diffidence, for it is, I understand, opposed to that of my honorable colleagues) that the Magistrate can make such an order, that is that he can call upon a defendant to enter into a bond to keep the peace, without recording evidence in support of the charge in the defendant''s presence. 1 do not contend that the Magistrate need not adjudicate judicially," nor does my opinion in the case of Tarinikant Lahori 8 W.R. 79, an opinion the propriety of which is called in question by this reference, go to that length; on the contrary, I think, that the Magistrate''s action would in all cases amount substantially to a judicial adjudication, even though no evidence were recorded by him at the time of coming to such adjudication. He would adjudicate, that is on the credible information," on the strength of which be had already summoned the defendant to show cause.

I understand Chapter XVIII of the Code of Criminal Procedure to give Magistrates exceptional powers for exceptional purposes--purposes requiring, from their very nature, to be carried out promptly without the delays that accompany the ordinary forms of procedure, and on this ground to sanction some departure from the ordinary rules of evidence; and I can find nothing in this Chapter either directly or by implication that makes it incumbent on a Magistrate to record the evidence on which be intends to proceed in the presence of the party accused, or to do more than state the grounds on which the accused has been summoned, and to declare judicially that these grounds are sufficient to put the accused on his defence. The defendant already knows the case he has to answer, for the summons u/s 283 would have set forth the substance of the credible information on which the Magistrate was prepared to act.

Section 282 says, whenever a Magistrate shall receive credible information that any person is likely to commit a breach of the peace, be may summon that person to show cause why he should not be "required to enter into a bond to keep the peace; that is the accused is not summoned until the Magistrate has come to an "ex parte decision on credible information that be is a person who ought to be pub upon his defence, and to show cause why he should not enter into recognizances. The onus" appears to be kid wholly upon him. The Magistrate is not to show cause why be has summoned him, but the defendant is to show cause why be should not be declared a person likely to commit a breach of the peace.

I cannot find any section in Chapter XVIII which directs a Magistrate to take evidence in the usual way in support of the information when disposing of charges of this description. Section 287 no doubt supposes a case where the Magistrate shall not be satisfied that there is occasion to bind over a defendant, but I understand this to refer to the whole proceedings and not only to evidence supposed to have been taken on the part of the Crown. I understand it to apply to cases where the credible information on which the Magistrate acted has been invalidated by the accused showing that it is not so credible as it at first appeared, or where it had been directly rebutted by evidence still more credible.

In support of my view I would instance the case of a party, the period of whose security bond has been extended u/s 290. It seems to me clear that in such a case at least the accused is ordered to give security for such further period as the Court of Session thinks fit (not exceeding one year) without being allowed to have a voice in the matter; and yet it might very well be that the accused might, during the first year for which security had been taken have seen the folly of his ways and have determined to keep the peace for the future; but in such a case the Magistrate first, and the Sessions Judge afterwards, act not upon evidence (unless they choose to take it) but simply upon their own impressions not even supported by credible information" that a further security bond is necessary, and the accused has to give that bond or go to jail. He is not called upon to show cause, nor is he given any opportunity of showing that the Magistrate''s "impressions" were erroneous. Now, if a party called upon to show cause u/s 282 is entitled to have the evidence on which the Magistrate proposes to act recorded before him, why should not the party u/s 290 have the same privilege? and yet it is clear that he has not.

Again, if no security bond can be taken without evidence for the Crown being recorded in the presence of the party summoned, what would be the procedure in cases where the information on which the Magistrate acts consists of the report of a Sub-Magistrate or of a Police Officer, both of which reports have been declared by this Court to be "credible information" under the section. Is the Police Officer to be summoned to swear to the truth of his report, and would the accused have the right to insist upon all the persons through whom the Police Officer derived his information being sent for and their evidence recorded before him. The Police Officer might be and frequently would be 50 miles away, and whilst he and the witnesses were coming, the breach of the peace might take place. Must the Sub-Magistrate''s report also be supported by independent testimony? and must that Officer prove by witnesses the way in which he got his information?

Suppose again, a not unfrequent case, the case where a Magistrate derives his credible information" from his own sense of sight. He sees himself circumstances which give him an assured impression that such and such a person is likely to commit a breach of the peace; is be to give evidence of his belief?

Another reason, though I admit a slight one, for supposing that the recording of evidence is not necessary under Chapter XVIII is to be found in the wording of section 307, which says that any evidence taken under Chapter XVIII is to be recorded in the usual way (section 267). The word any" seems to suppose cases under that Chapter, where there would be no evidence recorded at all.

I admit that if the opinion I have expressed above be correct, a Magistrate under this section would act without the observance of the ordinary procedure, but his powers under Chapter XVIII have always seemed to me to be purposely exceptional, and after all they do not involve a very great relaxation of the rules of evidence.

I think that both questions submitted to the Full Bench should be answered in the affirmative.

Peacock, C.J., Bayley, Kemp and Macpherson, JJ.

It appears to me that substantially there is only one question before us, viz., whether when a Magistrate has issued a summons upon credible information u/s 282, calling upon a party to show cause why he should not be required to enter into a bond to keep the peace, he may, upon the party''s appearing and failing to satisfy him that there was no occasion to bind him over, act upon his previous information, and make an order u/s 288 without taking further evidence. That is the question which is propounded by L.S. Jackson and Markby, JJ. The question raised by Loch and Glover, JJ., appears to me to involve the same point. It has been decided by a Division Bench, consisting of Phear and Hobhouse, JJ., that a Magistrate cannot order a defendant to enter into such a bond until he has adjudicated judicially upon evidence properly taken before him. Loch, J., in the case referred by him and Glover, J., thought that the decision of Phear and Hob-house, JJ., was correct. Glover, J., however was of a contrary opinion. No precise question has been referred to us by Loch and Glover, JJ., and the only question which it appears to me we have to answer is that which I have stated. That question I think must be answered in the negative. Section 282 enacts that '''' it shall be lawful for the Magistrate of the district or other Officer exercising the powers "of a Magistrate, whenever he shall receive credible information that any "person, whether a European British subject or not, is likely to commit a breach of the peace, or to do any act that may probably occasion a breach of the peace, to summon such person to attend at a time and "place mentioned in the summons, to show cause why he should not be required to enter into a bond to keep the peace with or without sureties as such Magistrate shall think fit." I understand my honorable colleague Glover, J., to say that a report of a Police Officer would be sufficient credible information to authorize a Magistrate to call on a person to show cause why be should not enter into a security bond. The question is not whether that would be sufficient information to justify the Magistrate, in calling upon the person to show cause, but whether it would be sufficient without further evidence to justify the Magistrate in adjudicating upon the case and ordering the party to give security.

Section 285 points out what is to be done if the person summoned to show cause does not attend. It enables the Magistrate to issue a warrant for such person''s arrest; and it further provides that if it appears to a Magistrate upon the report of a Police Officer, or upon other credible "information" (the substance of which report or information must be recorded) "that there is just reason to fear the commission of a breach of "the peace, which may probably be prevented by the immediate arrest of any person, it shall be lawful for the Magistrate at any time to issue "a warrant for the arrest of such person."

Section 287 provides that if upon the appearance of the person or of his agent, if he is permitted to appear by agent, the Magistrate shall not be satisfied that there is occasion to bind such person to keep the peace, he shall direct his discharge."

Now it appears to me that the meaning of this act was that, when the person summoned appears, the Magistrate is to proceed judicially, and that he is not to be satisfied without evidence that there is occasion to bind him over. He is not to take the report of a Police Officer upon which he may hare issued the summons as evidence when be adjudicates upon the case. If no evidence is given upon the subject when the person summoned appears, the Magistrate cannot u/s 287 be judicially satisfied that there is occasion to bind him over, but is bound to order his discharge.

My honorable colleague Glover, J., has put the case of a Magistrate having issued a summons on the report of a Police Officer, and he says that the Police Officer may be 50 miles away when the case comes on. But it would be contrary to every principle of natural justice to adjudicate and order a man to enter into a bond to keep the peace on the mere report of a Police Officer, who, when the case comes on to be adjudicated, is 50 miles away and cannot be cross-examined by the party called on to give the security.

It is not always sufficient for the person summoned to enter into his own recognizance; but he is bound if the Magistrate requires him to find sureties, and if he disobeys the order of the Magistrate, he may be committed to jail and may be detained there in custody for a year, unless in the meantime he complies with the order. Thus according to my honorable colleague''s view of the case, a European or other person may be called on to give a bond to keep the peace and to find sureties upon the mere report of a Police Officer without any further evidence, although the Police Officer on whose report the summons to show cause was issued may be 50 miles away. If that view is correct a Magistrate may act upon a report made behind the back of the accused by a person who fails'' to come forward and submit himself for cross-examination. A person may not always be able to find security. The sureties, if they become bound, or if their bonds are forfeited, are liable to be sent to the civil jail for 6th months, unless they pay the amount.

It appears to me that before a person can be called on to give a bond to keep the peace, the Magistrate must adjudicate on the question as to whether there is reasonable ground for believing that be is likely to commit a breach of the peace; and that be must adjudicate on that point, in the way in which he must adjudicate in all other cases, after taking evidence in the presence of the person charged and giving him an'' opportunity to cross-examine the witnesses. It appears to me that it would be most unreasonable to suppose that the Legislature could have intended to allow a man to be sent to jail for a year for not finding sureties, merely on the report of a Police Officer. If sent to jail for one year for not finding sureties, be may be kept in jail for a further year after the Magistrate has submitted a report to the Sessions Judge.

My honorable colleague has referred to section 307, which says that any evidence taken under chapter XVIII or this chapter shall be taken in the manner prescribed by section 267, subject to the provision contained in section 268 of this Act." My honorable colleague seems to think that an argument may be adduced from this section, in which the words any evidence are used, to show that the Legislature intended that the Magistrate might, if he pleases, act without any evidence in cases falling within chapter XVIII or XIX; but when we come to look at those sections, I think it is very clear what was intended. u/s 265 if the accused person (that is, on a trial of an offence) admit the truth of the complaint, and show no sufficient cause why be should not be convicted the Magistrate may convict him accordingly." So in a case under chapter XVIII, if the party accused comes in and admits that he is going to commit a breach of the peace, and so admits the charge, there would be no necessity for calling for evidence. It appears to me that the Legislature never could have intended that a man should be imprisoned for a year, and probably for two years, simply on the report of a Police Officer, who may be absent when the man appears to answer the summons. The question as propounded by L.S. Jackson and Markby, JJ., may possibly raise the question as to whether the onus is upon the person called on to show cause, or upon the person who calls upon him to show cause to enter into a bond to keep the peace. It is quite clear that the onus lies on the person who calls upon the party to show cause to prove the affirmative. Section 287 says that if on the appearance of the person, the Magistrate shall not be satisfied that there is occasion to bind him to keep the peace, be shall direct his discharge." What is the meaning of the words if the Magistrate shall not be satisfied?" The meaning is, if he shall not be satisfied by evidence given in the ordinary way. He is not to be satisfied by any idle gossip which he may have heard, nor by the mere report of a Police Officer, but by evidence taken judicially before him in the presence of the person summoned, who must have an opportunity given him of cross-examining the witnesses adduced by those on whose complaint the charge against him is brought forward.