(1.) This appeal is directed against an order passed by the Sub-Divisional Magistrate Ahmedabad forfeiting the amount of a bond executed by the appellant on 19th June 1961 for keeping the peace pending the completion of an inquiry before the learned Sub-Divisional Magistrate. A complaint was lodged before the learned Sub-Divisional Magistrate to the effect that the appellant was likely to commit a breach of the peace and that proceedings should therefore be adopted against him under sec. 107 Criminal Procedure Code. On the complaint the learned Sub-Divisional Magistrate made an order under sec. 112 Criminal Procedure Code. The learned Sub-Divisional Magistrate also on the application of the police made another order on the same day. That order consisted of two parts. By the first part the learned Sub-Divisional Magistrate directed the appellant to execute an interim bond for Rs. 500.00 with one surety of like amount for keeping the peace pending the completion of the proceedings against the appellant. This part of the order was made under sec. 117(3) Criminal Procedure Code. By the second part of the order the learned Sub-Divisional Magistrate issued a bailable warrant for Rs. 500/against the appellant under sec. 114 Criminal Procedure Code since he was of the opinion that breach of the peace could not be prevented otherwise than by the immediate arrest of the appellant. At the date when these two orders namely the one under 112 and and the other under secs. 114 and 117(3) were made the appellant was as the record shows away from Ahmedabad. The appellant thereafter returned to Ahmedabad and executed an interim bond for Rs. 500.00 with one surety of like amount to keep the peace during the pendency of the inquiry before the learned Sub-Divisional Magistrate. This interim bond was executed by the appellant on 19th June 1961 The appellant also made an application to the learned Sub-Divisional Magistrate in regard to the bailable warrant for Rs. 500.00 and on the application of the appellant the amount of the bail was reduced from Rs. 500.00 to Rs.300.00 by the learned Sub-Divisional Magistrate. It appears that the appellant furnished bail and was therefore released. The appellant according to the State committed two offences one against one Amratlal and the other against one Krishnakant on 20th June 1961 and 21st June 1961 and non-cognizable complaints were lodged with the police against the appellant by Amratlal and Krishnakant. The police thereupon made an application to the learned Sub-Divisional Magistrate for forfeiting the amount of the interim bond executed by the appellant. The application was resisted by the appellant. The learned Sub-Divisional Magistrate however after taking evidence came to the conclusion that the appellant had committed a breach of the peace in violation of the terms of the interim bond and had therefore incurred forfeiture of the amount of the bond. The learned Sub-Divisional Magistrate accordingly made an order forfeiting the amount of the interim bond. The appellant thereupon preferred an appeal in the Court of District Magistrate Ahmedabad. On the coming into force of the new set up in Ahmedabad the appeal was directed by a Division Bench to be transferred to this Court. Hence the appeal before me.
(2.) Mr. Sethna learned advocate appearing on behalf of the appellant raised in the main two contentions in support of the appeal. The first contention was that the order made by the learned Sub-Divisional Magistrate under sec. 117(3) pursuant to which the interim bond was executed by the appellant was not a valid order and that the learned Sub-Divisional Magistrate was therefore not entitled to forfeit the amount of the interim bond. The ground on which this contention was based was that no order sec. 117(3) could be made by the learned Sub-Divisional Magistrate unless the inquiry mentioned in section 117(1) had commenced and the inquiry under sec. 117(1) could not be said to have commenced until the order made under sec. 112 was read or explained under sec. 113 to the appellant if he was present in Court at the date when the order under sec. 112 was made or if the appellant was not so present then until the appellant appeared or was brought before the learned Sub- Divisional Magistrate in compliance with or in execution of a summons or warrant issued under sec. 114. Mr. Sethna contended that in the present case the order under sec. 117(3) was made by the learned Sub- Divisional Magistrate before the inquiry under sec. 117(1)had commenced because the order under sec. 117(3) was made at the same time as the order under sec. 112 long before the appellant was brought before the learned Sub-Divisional Magistrate in execution of the warrant issued against him under sec. 114 by the learned Sub-Divisional Magistrate. If this contention of Mr. Sethna is right it is obvious that the order made by the learned Sub-Divisional Magistrate under sec. 117(3) was not a valid order and if that be so it is equally clear that the amount of the interim bond executed by the appellant in obedience to such an invalid order could not be forfeited by the learned Sub-Divisional Magistrate.
(3.) The second contention of Mr. Sethna was based on the merits of the order made by the learned Sub-Divisional Magistrate forfeiting the amount of the interim bond. Mr. Sethna contended that the evidence on record did not establish that the appellant had committed a breach of the peace and thereby incurred forfeiture of the interim bond. This contention would have of course required consideration of the evidence led before the learned Sub-Divisional Magistrate but in view of the fact that I am accepting the first contention of Mr. Sethna it is not necessary for me to decide the validity of this contention and I therefore do not propose to say anything about it.