STATE Vs. DEVASSI OUSEPH

JUDGEMENT

(1.) The Special First Class Magistrate, Trichur started proceedings in M. C. 6 of 1952 against one Ouseph alias Kunhani under S.110 (a) of the Criminal Procedure Code and passed orders directing him to execute a bond for Rs 500/- with two sureties each for a like amount for good behaviour for a period of two years. On his failure to execute the bond, the Magistrate detained him in custody and referred the matter to the Sessions Judge, Trichur under S.123(3) of the Indian Criminal Procedure Code. The learned Judge accepted the reference and committed him 'to prison to undergo rigorous imprisonment For a period of two years from the date of his order which was on 3rd June 1952. The Magistrate had by his warrant dated 31st March 1952 detained Ouseph in custody.

(2.) The learned Public Prosecutor then filed this petition pointing out that the direction of the Sessions Judge to commence the imprisonment from the date of his order was wrong and illegal, and that the same was to commence from the date of his detention in prison by the Magistrate. It was therefore, prayed, that the mistake committed by the Sessions Judge might be corrected. Notice of this petition was given to the prisoner and he has sent a petition through the jail authorities that he might also be heard in this matter. That is Crl. M. P. 190 of 1953. He had not complained against the order of the Sessions Judge and he could not advance any argument against the petition moved by the State for, if the same be allowed, it would only be to his advantage. So, his petition for a personal hearing is not allowed.

(3.) It was the considered view of five Judges of the Allahabad High Court in Emperor v. Thula Khan, ILR 30 All. 334 that where a person is ordered by a Magistrate to be "detained in prison" pending the orders of the Sessions Judge under S.123 of the Criminal P. C. such person must be considered as a person undergoing a sentence of imprisonment and not merely as an under trial prisoner in custody. The proviso to S.123(3) Criminal P. C, enacts that the period for which any person may be imprisoned for failure to give security shall not exceed three years. Thus, when the Sessions Judge orders imprisonment for three years, such order should have effect not from the date of his own order but from that of the Magistrate. Otherwise, the said proviso will be infringed. Thus, the order of the Judge is to take effect from the date on which the Magistrate by his warrant detained the person in custody. Support for this position is obtained from a Full Bench decision of the Rangoon High Court in In Re Naga Pye, AIR 1931 Rang. 127 and a Division Bench decision of the Judicial Commissioner's Court, Sind in Allahabad v. The Crown, AIR 1924 Sind 120. Accepting the views thus expressed I hold that the direction of the Sessions Judge to commence the rigorous imprisonment for two years from the date his order was illegal and that the said two years will run from the date on which the Magistrate by his warrant detained Ouseph in prison. The jail authorities will be informed accordingly. Crl. M. P. 170/53 is allowed as mentioned above and Crl. M, P. 190/53 dismissed.