EMPEROR Vs. HARIHAR KALWAR

JUDGEMENT

(1.) On 15 February 1931, the Magistrate issued an order under Section 117(3) Criminal P.C., against Hari Har accused to execute a personal bond in Rs. 1,000, with two sureties in like amounts, each in cash, for keeping the peace until the conclusion of the inquiry.

(2.) The Sessions Judge modified the order on 24 February 1931, and ordered his release on his executing a bond for Rupees 1,000 with two sureties, in like amounts to the satisfaction of the Court concerned. The accused however was not released, because he was involved in another offence. When the District Magistrate was moved, he pointed out that the Sessions Judge had no power to interfere with the order under Section 107, read with Section 117(3), Criminal P.C., but might have reported to the High Court. When the matter came up again before the Sessions Judge, he had admitted that he had mistaken the order to be an order of bail and had wrongly amended it. He passed a fresh order on 12th March that unless the original order was amended by the Magistrate in the light of the observations contained in his order dated 24 February 1931 the record be submitted to the High Court with the recommendation that the words in cash" be deleted. On receipt of this direction, the Magistrate on 19 March amended his previous order and substituted "two reliable sureties in moveable properties" instead of "two cash sureties." The Magistrate this time used the word "securities" without carefully reading his previous order which had said "sureties." Then on 21 March the Sessions Judge again expressed an opinion that a surety in cash" had no meaning at all. He directed the record to be submitted to the High Court, and asked for the explanation of the Magistrate. The Sessions Judge gave his reasons for holding that it is not open to a Magistrate to direct that the property which is offered as security by the sureties be of a particular nature. The Magistrate submitted his explanation and the District Magistrate added a supplementary explanation, stressing that the Magistrate was not bound to accept security of immovable property, which would cause considerable difficulty in realization in case of forfeiture. After this the Sessions Judge passed a fresh order on 25 March 1931 submitting the record to the High Court along with a copy of the previous order passed by him in the case of another accused person, dated 7th July 1930, which gave fuller reasons in support of his view.

(3.) The case went backwards and forwards on so many occasions because there was a difference of opinion between the Sessions Judge and the Magistrate as to the nature of the security that can be demanded.