BANSI Vs. HARI SINGH

JUDGEMENT

(1.) I have had the advantage of reading the opinion of my learned brother James and I am in agreement with the conclusion arrived at by him.

(2.) The question which calls for our determination may be stated in the terms in which it has been stated by my learned brother, namely:

(3.) The view expressed by my learned brother Desai in the case of -- 'Bharosa v. State', 1951 All WR HC 507 (A), which is contrary to the view that I hold, appears to me to be mainly based on the fact that the Code of Criminal Procedure in Schedule V provides a form (Form XXII) for orders to be made under Section 145. The reasoning of my learned brother Desai appears to be that if the Magistrate makes his order in the appropriate form then his order must be taken to be a valid order in view of the provisions of Section 555 of the Code of Criminal Procedure. I regret this reasoning of my learned brother Desai does not appeal to me and I shall presently give my own reasons for taking a different view. Form No. XXII of Schedule V is in these words: