KALU MIRZA Vs. EMPEROR

JUDGEMENT

(1.) The petitioners in this case have obtained a Rule in the following terms: "Let the record be sent for, and a Rule issue upon the District Magistrate to show cause why the order binding down the petitioners for good, behaviour should not be set aside, or why such other order in the matter should not be passed as to this Court may seem fit, on the ground that the case of the petitioners was not separately dealt with by the Sessions Judge and the Additional Magistrate in accordance with law, and why the fitness of the sureties tendered by the petitioners should not be considered by the Magistrate himself under Section 122 of the Criminal Procedure Code; and let a Rule also issue on the District Magistrate to show cause why the petitioners should not be released on the securities tendered for good behaviour, and meanwhile, pending the hearing of the Rule, let the petitioners be admitted to bail for their appearance whenever wanted to the satisfaction of the District Magistrate."

(2.) It will be seen that there are three principal points for determination, namely, (i) whether the order of the Sessions Judge confirming the orders of the Additional District Magistrate can be sustained, (ii) whether the petitioners should have been separately tried by the Magistrate, and (iii) whether the sureties tendered should have been refused.

(3.) On the first point, the learned Counsel for the petitioners relies on the decision in the case of Jamait Mullick V/s. Emperor (1907) I.L.R. 35 Calc. 138, where it is laid down that the judgment of an Appellate Court should show on the face of it that the case of each accused has been taken into consideration. The learned Counsel for the Crown argues that this ruling is not applicable, inasmuch as the order of the Sessions Judge is not an appellate judgment. Now, it may be open to doubt whether the provisions of Secs.367 and 424, which apply to judgments in trials and in appeals, govern orders under Section 123, Sub-section (3). But even if they do not, it is only reasonable to require the Sessions Judge, in writing his order, to show that he has considered the case of each individual prisoner, as it is his duty to do. Even if the order need not contain all the details required by Section 367, still each prisoner has a right to have his case considered on its own merits, and the order should show that this has not been lost sight of. I am not entirely satisfied that this has not been lost sight of in the present case.