EMPEROR Vs. RAJA SINGH

JUDGEMENT

(1.) I must take it from the learned Sessions Judge, who had better opportunity of satisfying himself on the point than this Court can have, that the trying Magistrate, Mr. A.G. Ausan, was a Sub-divisional Magistrate in the district of Azamgarh at the time when this order was passed. The question raised by this application, therefore, is whether a Magistrate of the second class, who is also a Sub-divisional Magistrate, can pass an order under Section 106 of the Code of Criminal Procedure binding over a person to keep the peace for a period exceeding six months. The suggestion is that, as such order carries with it an alternative sentence of imprisonment in case security is not filed, the powers of a Magistrate of the second class, even though he may be a Sub-divisional Magistrate, are limited as regards the period of imprisonment by the provisions of Section 32 of the Code of Criminal Procedure. I am clearly of opinion that the provisions of Section 106 of the Code of Criminal Procedure cannot be limited in this way. The powers therein referred to are conferred upon the court of a Sub-divisional Magistrate, and all that such court does under that section is to require the person convicted to execute a bond with or without sureties for keeping the peace during such period not exceeding three years as the court may think fit. If the period in question should exceed one year, the provisions of Section 123, Clause (2), of the Code of Criminal Procedure necessitate a reference to the Sessions Judge; but otherwise detention in prison until the prescribed period expires, or until within such period the required security is furnished, follows under the provisions of Clause (1) of the same section, independently of the powers of the Magistrate. So long as the order requiring the applicant in this case to furnish security was passed by a court which had authority to do so under the provisions of Section 106 of the Code of Criminal Procedure, and the period for which security was required did not exceed one year, the liability of the applicant to be detained in prison unless he furnished security is something independent of the powers of the Magistrate in the matter of passing substantive sentences of imprisonment. I dismiss this application.