State of Kerala vs Devassya

Velu Pillai J.

This reference is by the Sessions Judge at Kottayam, concerning the order passed by the First Class Magistrate, Ponkunnam, disposing of a proceeding against one Devassya, the counter-petitioner initiated on a Police charge-sheet u/s 110, Clauses (e) and (f) Crl. P.C. A preliminary order u/s 112 Crl. P.C. was passed by the First Class Magistrate, on the 3rd July, 1959. The counter-petitioner was present in court on that day and the preliminary order was read and explained to him and he was called upon to show cause, why he should not execute a bond for Rs. 3,000/- with two solvent sureties, for his good behaviour for a period of three years. The learned'' Magistrate has recorded in the order passed by him, that the counter-petitioner had admitted the previous convictions and the charges levelled against him, and that he had no cause to show, why he should not be called upon to execute a bond.. Finally, the learned Magistrate ordered him to execute a bond for Rs. 3,000/- for good behaviour for a period of two years and by the same order he prescribed, that in default of executing a bond, he must undergo rigorous imprisonment until the period of two years expires, or until he executes the bond. He did not refer the case, as he was bound to do, to the Sessions Judge, u/s 123(2) Crl. P.C. There is a conflict of opinion as to whether an expression of willingness by the counter-petitioner in a proceeding u/s 110, Crl. P.C. to furnish security, is sufficient to dispense with the necessity of an enquiry by the Magistrate. The Allahabad High Court has taken the view, that in certain circumstances, such expression of willingness is sufficient to dispense with the need for the enquiry, but even so, that court has laid down in Emperor v Karwa, AIR 1928 All. 357, that there must be a clear admission by the counter-petitioner of all the elements which make up the subject-matter of the charge. In the present case, the Magistrate seemed to have read over the preliminary order to the counter-petitioner. The answers furnished by him, as recorded, show that he has admitted the charges. The previous convictions cannot come within the scope of the term "charges." But to constitute an admission of the charge against him u/s 110 (e) and (f), the counter-petitioner must admit all the necessary ingredients for holding that he "habitually commits, or attempts to commit, or abets the commission of, offences involving a breach of the peace," or "that he is so desperate and dangerous as to render his being at large without security hazardous to the community." I am not satisfied on a perusal of the answers furnished by the counter-petitioner to the questions put to him by the learned Magistrate, that he has admitted all these ingredients.

The learned Sessions Judge has pointed out, that this is a case in which the Magistrate ought to have proceeded with the enquiry u/s 117, Crl. P.C. and that in any case, he should have referred the matter to the Sessions Judge u/s 123 (2). I accept the reference made by the learned Sessions Judge on both these points, and hold that the order passed by the Magistrate does not satisfy the requirements of law. The order of the learned Magistrate is therefore set aside, and the case will be proceeded with by him, according to law.