Sitaram Ahir and Others vs Emperor

James, J.—The petitioners were required to execute bonds for good behaviour u/s 118 of the Code of Criminal Procedure by the Special Magistrate of Buxar, who then placed the proceedings before the Sessions Judge of Shahabad u/s 123 of the Code. The Sessions Judge before taking up the reference directed that the prisoners should be informed of the date fixed for heating which should have been done through the District Magistrate.

The petitioners say that they had no information regarding the proceedings in the Court of the Sessions Judge and it appears that the District Magistrate referred the notice to the Special Magistrate who directed that his bench clerk should see that the prisoners were informed; but it does not appear that anything further was done. The proceedings u/s 123 should not have been taken without notice to the persons affected by the order. The case of Emperor v. Amir Bala (1911) 35 Bom 271 only need be cited as authority for this rule that the person affected by the order must have an opportunity of being heard before the final order is made u/s 123 of the Code of Criminal Procedure. The order of the Sessions Judge must therefore be set aside and the case is remanded to him for re-hearing after giving notice to the petitioners according to law.

The prisoner Chandrika Ahir has not moved the High Court; but it appears that notice was not served on him. The whole of the order of the Sessions Judge will be set aside and the case against the four men Sita Ram, Ujagir, Chandrika and Kulhans will be reheard.

Dhavle, J.

I agree.