Emperor vs (Baraik) Narendra Nath Singh

Adami, J.—This is a reference u/s 438, Criminal P.C., made by the Judicial Commissioner of Chota Nagpur recommending that an order passed by the Assistant Sessions Judge with regard to the testing and acceptance of certain sureties offered in pursuance of an order passed u/s 123(3), Criminal P.C., should be set aside.

On 25th August 1928, Bhondu Singh, as a result of proceedings taken against him u/s 110, was ordered to execute a bond of RS. 2,500, with four sureties of the like amount each, to be of good behaviour for a period of three years. The security not having been furnished, the Magistrate referred his order to the Judicial Commissioner as required by Section 123(2). The Judicial Commissioner transferred the matter to the Assistant Sessions Judge u/s 123(3-B) for disposal, who confirmed the order made by the Magistrate, but instead of requiring Bhondu Singh to execute a bond to be of good behaviour, directed that he should execute a bond to keep the peace. It is quite evident that this was a more oversight on the part of the learned Assistant Sessions Judge, since a bond to keep the peace cannot be required in proceedings u/s 110. However, that is not the point in this reference.

After the order was passed by the Assistant Session Judge ho proceeded to call on Bhondu Singh to provide sureties before him and directed that the sureties would be tested in his Court in the presence of the Public Prosecutor. On the date fixed Bhondu Singh offered his father, Sidhnath Singh, and three others as sureties. The Public Prosecutor put forward objections to the persons offered on the ground that Sidhnath Singh had a previous conviction, that one of the other three persons had encumbrances on his property, and that another ft as heavily involved in debt.

The Assistant Sessions Judge overruled the objections as to Sidhnath and the person who had encumbered property, but allowed the objection as to the other. When a substitute for the latter was offered the Public Prosecutor argued that the testing of sureties was the duty of the Magistrate and that the Assistant Sessions Judge had no jurisdiction in this matter. The Assistant Sessions Judge overruled the objection, relying on a passage in Sir J. Woodroff''s "Criminal Procedure Code," 1920 and a ruling of the Judicial Commissioners in Sind reported in Imperator v. Allahdin [1910] 5 S.L.R. 87 as also on the wording of Section 123(4).

The point referred to this Court for decision is whether the Sessions Court before which proceedings are laid u/s 123(2) has the duty or power to test sureties offered by the person who is bound down.

Sir Ali Imam who appears to oppose the reference relies mainly on the decision of the Judicial Commissioners of Sind referred to above and on Section 123(3) which runs:

(3) Such Court after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, may pass such order on the case as it thinks fit.

and on Sub-section (4) of the section which is to the effect that ;

(4) Ii the security is tendered to the officer in charge of the jail, ho shall forthwith refer she matter to the Court or Magistrate who made the order, and shall await the orders oil such Court or Magistrate.

He argues that, as stated in the above cited decision, the Magistrate has no power to require by his order security for a period exceeding one year, and therefore he can have no power to test sureties when the order is for security for a period of three years. It is not exact to say that the Magistrate has no such power to pass an order; he has full power to make the order, but if security is to be given for a period exceeding one year, the proceedings must be laid before the Sessions Judge for confirmation or such orders as may seem fit to the Judge. It is not clear that the orders referred to in Sub-section (3) include the testing of sureties, such testing being a separate proceeding which follows after an order has been passed requiring a bond to be executed and sureties to be furnished, and there is only one section in the Code prescribing the manner in which sureties are to be tested, namely, Section 122, and that refers to the Magistrate only as the testing authority. There is no provision in the Code referring to or regulating the testing of sureties by a Sessions Judge, unless it can be said that Sub-section (4), Section 123 contemplates such a proceeding, as argued by learned Counsel and as was found by the Judicial Commissioners in Sind. That Sub-section certainly shows that when the Sessions Court has passed an order u/s 123(3) and a warrant from the Court has reached the officer in charge of the jail, that officer, if a person comes to him and offers himself as surety, must refer the matter to the Sessions Court, but the Sub-section does not state that the Court must thereupon test the surety, the Court can, and as far as I know, always does, refer the duty of testing the surety to the Magistrate for whose procedure in the matter there is special provision in Section 122. If the warrant comes from the Court, the Court is naturally the only authority to whom the officer in charge of the jail can make a reference, and that seems to be the reason why Section 123(4) is so worded.

That it was not intended by the legislature that the testing of sureties should be done by the Sessions Court is, I think, shown by the new Section 406-A, which was inserted in the Code of 1923, giving a right of appeal against an order u/s 122 refusing to accept or rejecting a surety. While order made by a Presidency Magistrate, District Magistrate or other Magistrates are made appealable, there is no mention of any such order made by a Sessions ''Court. It seems that such an order by a Sessions Court was not contemplated. It can hardly be imagined that it is intended that a Sessions Judge should be altogether untrammelled in the procedure he follows in testing a surety, there being no provision similar to Section 122 to regulate his procedure, and that there should be no right of appeal against an order passed under such circumstances.

Section 122 requires a Magistrate in his order to specify the number, character and class of sureties that are to be given; the Sessions Judge passing an order u/s 123(2) will not go beyond this. His Chief object when the case is laid before him u/s 123 will be to determine whether the security should be given for good behaviour for so long a period as three years.

Clearly the Magistrate will have better opportunities of satisfying himself as to the sufficieney of a surety offered than will the Sessions Judge, and so far as my experience goes the Sessions Judge has always left the matter of testing sureties to the Magistrate. If the Magistrate rejects any of the sureties offered there is a right of appeal given by Section 406-A. That section was not enacted at the time when the Judicial Commissioners in Sind gave their decision, nor was Section 122.

I find that the Assistant Sessions Judge had not jurisdiction to test the sureties and therefore would set aside the orders passed by him and direct that the matter of accepting or rejecting the sureties offered in this case be dealt with by the Magistrate u/s 122. The necessary correction will be made in the order of the Assistant Sessions Judge, substituting the words "to be of good behaviour" for the words "to keep the peace."

Scroope, J.

I agree.