Nathan Gope and Others vs Emperor

Wort, J.—This is an application for bail in the case of a number of persons against whom proceedings were instituted u/s 107, Criminal P.C. The rule was granted against the order of the learned Sessions Judge made on 7th June 1929 in which he declined to allow bail, or, in other words, to set aside the order of the Magistrate arresting these petitioners in the following circumstances.

I have already stated proceedings were drawn up u/s 107 against them. That was on 31st March 1929 and they were asked to show cause why they should not be ordered to execute bonds with sureties for keeping the peace. It is unnecessary to set out the circumstances or the facts of the case except to say that the local officers were of the opinion that the breach of the peace was imminent. Now in pursuance of the orders drawn up u/s 107, these petitioners had executed bonds with sureties. The bonds were executed u/s 117, Sub-section (3) and ware of a temporary character, the inquiry into the matter having not been concluded. On 18th May it appears, the police were still of the opinion that there was imminent danger of the breach of the peace, and on 23rd May the Magistrate ordered an arrest of the petitioners.

The application for bail, as I have already indicated, was made to the Magistrate who refused it, whereupon the application for bail was renewed before the Sessions Judge of Monghyr who also refused it. Now it is contended, first of all, that in any event the Magistrate was bound u/s 496 to grant bail to these petitioners and secondly, that the order of arrest passed by the Magistrate on 21st May of this year was illegal and should, therefore, be set aside.

The first point I have to deal with is to consider the question of the legality of the order directing the arrest of the petitioners, and for this purpose it is necessary to consider Section 107 to 114, Criminal P.C. The provisions of Section 107 are sufficiently well known and, as I have already stated, proceedings commenced under that section. Sections 107 to 110 briefly describe the various forms of breach of the peace which might be committed in regard to which proceedings may be drawn up. Section 112 deals with the procedure which the Magistrate is to follow in proceedings of this character and provides that:

when, a Magistrate acting under Sections 107 to 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.

Section 113 provides:

If the person in respect of whom such order is made is present is Court, it shall be read over to him or, if ha so desires, the substance thereof shall be explained to him.

Then we get from Section 114 that:

the Magistrate shall issue a summons requiring the person to appear, or when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court.

Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

Now this is the most important section for consideration with regard to this matter and under this section the Magistrate can give reasons justifying his order of arrest. It is contended by Mr. Nandkeolyar on behalf of the petitioners that Section 114 relates only to a particular state of circumstances and that it cannot possibly relate to a case of this kind where the person has appeared and where under the order of the Court bonds with sureties have been executed. On the other hand, the learned Government Pleader on behalf of the Crown argues that the Magistrate may at any time issue a warrant of arrest; that the proviso relates not merely to the state of affairs which it is urged on behalf of the petitioners the section relates to, but that it gives the Magistrate the widest possible powers "at any stage of the proceedings" and whatever the circumstances may be, so long as there is a fear of the commission of the breach of the peace, to make an order for arrest. As I have already stated the question resolves itself into the question of how far a Magistrate may go under the proviso to Section 114. It is true that a very wide expression is used at the latter part of the proviso "may at any time issue a warrant for his arrest" but it is to be noticed in the first place that it is a proviso to a section which provides for the issue of a summons requiring the person to appear before the Magistrate; and at first appearance at any rate, one would suppose that the proviso related to the circumstances contemplated by the main portion of the section. It is argued by Mr. Nandkeolyar on behalf of the petitioners that the meaning of Section 114 is made quite clear when Section 115 is read Section 115 provides:

Every summons or warrant issued u/s 114 shall be accompanied by a copy of the order made u/s 112, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same.

Section 112, as I have already stated, lays down the requirements of an order which is made under Sections 107, 108, 109 and 110. The argument, therefore, is this that if the proviso to Section 114 can be used by the Magistrate at any stage of the proceedings, that is to say, whether the person has already appeared before the Court, or whether bond has been executed or not, then why the necessity'' of serving upon that person a copy of order made u/s 112 Now I go so far as to say that it may be that the proviso to Section 114 may give the power to the Magistrate to arrest a person although a summons has been served upon the person and that person has not answered to that summons. But I am strongly of the opinion that this argument on behalf of the petitioner, that Section 115 does indicate that the proviso to Section 114 is a proviso to the section which relates to the circumstances set out in Section 114 and is not a substantive provision (to put it briefly) standing by itself, is quite correct.

In this case the Magistrate had, in my judgment, certain powers. Having issued the summons, u/s 117(3) (always provided that the circumstances warranted it), he could have detained the persons in custody; on the other hand he could, as he has done in this case, call upon the petitioners to execute bonds for their good behaviour: and having once executed the bonds the matter ended unless there arose circumstances under which he could u/s 514 of the Code forfeit or cancel the bonds. It seems to me, therefore, that coming to the conclusion to which I have arrived namely that the proviso to Section 114 does not give the power to the Magistrate to re-arrest these persons, it necessarily follows that the order which the Magistrate made was illegal and consequently the only order that this Court can make is that the order should be discharged and the petitioners released from has at.

In support of this contention the case of Raghunandan Prashad v. Emperor [1905] 32 Cal. 80 has been relied upon. In that case there was a re-arrest. The parties against whom the order u/s 107 had been passed had not executed the bond and, therefore, to that extent, the facts of that case were dissimilar to the facts of the present case; but the Court stated that having regard to the terms of Section 115 and to the fact that the petitioners had already appeared and been admitted to bail, it may be doubted whether the proviso to Section 114 applies to such a case as that. This case of course cannot be relied upon as a definite authority on the point. The Court there, as I have already stated, had certainly a doubt as to whether the proviso did give the Magistrate powers to what he did in the circumstances of the case. The facts of this ease, however, are stronger, they being that the Magistrate had exercised his power under the procedure of this chapter by calling upon the parties to execute bonds and obtained sureties-for their good behaviour. Now apart from that aspect of the case it is contended that the order refusing to grant bail must in any event be set aside. Section 496 which is referred id in the case which I have just quoted, provides that where a person not accused of non-bailable offence:

is arrested or detained without warrant by an officer in charge of the police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings-before such Court to give bail, such person shall be released on bail.

Now the facts of the present case come within the provisions of this section; and even supposing that the order of the Magistrate arresting these persons was legal, then also in my opinion they were entitled to bail under this section to use the words of the Court in the case to which I have already referred:

Section 496 is imperative and under its provisions the Deputy Commissioner (or the Magistrate in this case) was bound to release the petitioners on bail.

The only authority which is quoted against that; proposition of law is the decision in Narainswamy v. Emperor [1912] 36 Mad. 474. There the Magistrate u/s 107(4) had arrested and detained the person in custody and it was argued that u/s 496 he was bound to release the petitioner on bail. The learned Judges in that case decided that Clause (3) and (4), Section 107 are exceptions to Section 496. All that I need say regarding it is this that if the decision in that case is right, then the provisions not only of Section 107 but also of Section 117(3) are exceptions to Section 496; and that proposition of the law I must admit quite frankly I have the greatest diffidence in accepting.

In my judgment, whether the questions before me were either that the petitioners were entitled to bail or that the order of the Magistrate was illegal, both the questions should be answered in the affirmative. In my opinion, therefore, the order of the Magistrate being illegal, the petitioners before me must be released from custody.