Baso Rai and Another vs Emperor

Beevor, J.—The two petitioners were ordered by the Sub-divisional Magistrate of Deoghar to furnish security on bonds of Rs. 600 each with two sureties each of Rs. 250 each to be of good behaviour for two years, and a reference u/s 123, Criminal P.C., has been rejected by the Additional Sessions Judge of the Santal Parganas.

There has been an unfortunate error in the proceedings, because the learned Sub-divisional Magistrate first made a reference to the District Magistrate or the Additional District Magistrate of the Santal Parganas, and, when that officer held that he had no jurisdiction, the Sub-divisional Magistrate made a reference to the Additional Sessions Judge direct, and it was only when that officer returned the proceedings that he finally made a reference to the Sessions Judge, Bhagalpur, who subsequently transferred the reference to the Additional Sessions Judge of the Santal Parganas for disposal.

The first point urged on behalf of the petitioners was that the reference did lie to the District Magistrate or the Additional District Magistrate Reliance was placed on the Santal Parganas Justice (Amendment) Regulation, 1940, which provides that the Criminal P.C., 1898, shall have effect in the Santal Parganas subject to certain modifications specified therein. That Regulation certainly requires that appeals from, convictions by 1st class Magistrate shall lie to the District Magistrate, and not to the Sessions Judge; but I can find nothing in the Regulation which affects Section 123, Criminal P.C., and I, therefore, hold that the final reference was correctly made to the Sessions Judge, Bhagalpur, who is also Sessions Judge of the Santal Parganas.

The next point taken is that the learned Sub-divisional Magistrate was wrong in passing an order requiring the petitioners to furnish security and including in the same order a direction that in default the petitioners should suffer rigorous imprisonment for two years. This certainly is incorrect, and if authority is needed, reference may be made to the decisions in In re Ibraya Rowthen AIR 1927 Mad. 976 and In re Rangi AIR 1936 Nag. 265. It follows that the order of the Sub-divisional Magistrate contained in his original order, directing that the petitioners should suffer rigorous imprisonment, is invalid; but, in my opinion, that does not affect his order calling upon them to furnish security.

There was another error committed by the learned Magistrate in that he did not, in his original order, specify the date by which the security was to be furnished; but when this error had been pointed out by the Additional District Magistrate, he passed an order on 20-3-1946, requiring the petitioners to furnish security by 2-4-1946, and I consider that, as he had omitted to give any such direction in his original order, he could repair that omission by'' his later order dated 20-3-1946.

Reference was then made to the question; of joint trial of the petitioners. It was pointed out that in Jogendra Kumar Nag and Another Vs. Emperor, a Divisional Bench of this Court dissented from the decision of the Calcutta High Court in Jogendra Kumar Nag and Another Vs. Emperor, . The Calcutta case had taken the view that the question of joint trial depended entirely on allegations of the prosecution in cases u/s 110, Criminal P.C. The head-note suggests that this Courts decided that legality of the trial depends on the facts subsequently found to be true But, on considering the judgment, it seems to me clear that the case before this Court in Jai Sao and Others and Jhari Lal and Another Vs. Emperor, was that there was no evidence of joint association which would justify the joint trial. In the present case, there certainly was evidence of joint association of the two petitioners and in these circumstances I do not think the joint trial was illegal.

It was further urged that the Courts had relied on hearsay evidence But it seems that they have relied on evidence of reputation, and the distinction between evidence of reputation and hearsay evidence was fully set Out in the decision of Mohammad Noor J. in Ramasray Prasad Choudhary Vs. C.G. Atkins and Others, .

As regards the merits, it seems to me that the lower Courts have fairly considered the evidence, and I see no reason to interfere with their decision.

I find, therefore, that the petitioners have rightly been required to give security. The Sessions Judge has reduced the period of security to one year and the amount of security to be furnished to a bond of Rs. 200 each with two sureties of the like amount each. The amount of security does not appear excessive, and this order of the Sessions Judge should, therefore, stand. In view, however, of the fact that the execution of the security bonds was stayed by order of this Court, I direct that the period of one year should run from the date when the petitioners surrender to their bail before the Sub-divisional Magistrate.