EMPEROR Vs. KARBALAI HUSSAIN ALI HUSSAIN RIZIR SURETY

JUDGEMENT

(1.) ON 13th March 1939 proceedings under Section 109, Criminal P.C., were initiated against Premlal Ahir of Dewas before Mr. S.C. Rai, Magistrate First Class, Jubbulpore, camping at Tripuri. Premlal was produced from custody and the Magistrate, after examining four witnesses, adjourned the case to 21st March 1939 at Jubbulpore. He was not released on bail on that day as he had no surety to offer bail. Premlal produced a surety on 20th March 1939 and obtained an order from the Magistrate for his release on executing a bail bond with a surety for the sum of Rs. 200. On 21st March 1939 which was the date of hearing, Premlal was absent and as it was found that he had absconded the proceedings against him were withdrawn. The non-applicant Karbalai Husain stood surety for Premlal and executed the bail bond on 20th March 1939 in the sum of Rs. 200 giving security for Premlal's attendance in the Court. He was therefore called upon to show cause why the whole amount of Rs. 200 should not be recovered from him and he was ordered to pay Rs. 200 as the bond had been forfeited. His appeal in the Court of the District Magistrate, Jubbulpore, proved unsuccessful. On an application made by Karbalai Husain for the revision of the District Magistrate's order, the Additional Sessions Judge, Jubbulpore, has reported this case under Section 438, Criminal P.C., with a recommendation that as the bail bond was not according to law the order of forfeiture of the bond should be quashed.

(2.) THE learned Additional Sessions Judge appears to be of the opinion that Section 496 does not apply to proceedings under Section 109, Criminal P.C. In view of the plain terms of that Section, I cannot agree with his opinion. Section 496 does not merely refer to art accused person but generally to " any person other than a person accused of a non-bail-able offence who appears or is brought before a Court." The proviso to that Section makes it clear that the substantive part of the Section applies to Section 117, Sub-section 3. Section 117 has to be read with Section 112 which in turn refers to Sections 107, 108, 109 and 110. The order contemplated by Section 112 is a preliminary order which is followed by an enquiry under Section 117. That Section directs that when the order under Section 112 requires security for good behaviour, the procedure prescribed for conducting trials in the warrant case should be followed save that no charge need be framed. Pending the completion of the enquiry the Magistrate is invested with power to direct the person concerned to execute a bond forthwith, with or without sureties, for maintaining good behaviour until the completion of the enquiry. The proviso to Section 496 refers-to this power of the Magistrate and leaves it unaffected by anything that is said in that Section. I feel no doubt at all that Section 496 authorizes the Magistrate conducting an enquiry under Section 117, Criminal P.C., to release the person concerned in the enquiry on bail with or without surety to ensure his attendance in Court. I am fortified in this view by a case reported in U. Gandama v. Emperor AIR 1933 Rang 164. It is urged here that the bond which the non-applicant was called upon to execute was inappropriate for the proceedings under Section 109, Criminal P.C. It is true that the form which was used was the prescribed printed form of bail bond for appearance before a Magistrate, under Sections 496 and 499, and the wording of it indicates that it is to be used in the committal proceedings, but in the absence of any special form prescribed by law with reference to the preventive Sections of the Criminal Procedure Code there is nothing to suppose that the use of the prescribed printed form would be illegal and therefore invalid. The bond in the present case makes clear what the nature of the proceedings was and in which Court Premlal was to appear. The non-applicant cannot be heard to say that he was in any way misled by the terms of the bond which he had executed. Having signed the form he must be presumed to know that he had given security for the attendance of Premlal in the Court of Mr. S.C. Rai, Magistrate, First Class, Jubbulpore, in the proceedings under Section 109, Criminal P.C. For the foregoing reasons I do not see my way to accept the reference. I affirm the District Magistrate's order.