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Report No. 37

310. Section 122.-

The suggestion of a High Court Judge,1 with reference to section 122, is as follows:-

In practice, many Magistrates refuse to accept any surety offered without first getting it verified. This is not strictly in accordance with the provisions of section 122. The principle that whatever surety is offered must be accepted by the Magistrate though he can, after an inquiry, reject him, is unsound, and the section needs to be suitably amended.

(i) The Magistrate should be empowered to refuse to accept a surety if he has reason to believe that he is not fit to be accepted;

(ii) In such a case, he should be required to hold an inquiry into the fitness and then decide whether to accept him or not;

(iii) It may be advisable to prescribe a limit within which the Magistrate should complete the inquiry;

(iv) If he cannot complete the inquiry within the time prescribed, he can be compelled to accept the surety, with liberty to reject him later on his being found to be unfit after the completion of inquiry. This would be an adequate safeguard against bogus sureties.

1. F. 3(2)/55-L.C. Pt. II, S. No. 33(a).

311. Of the four points made in the suggestion,1 the first two are, in substance, covered by section 122(1), main paragraph, and the proviso. The Magistrate, no doubt, can exercise the discretion to refuse to accept a surety only after a satisfactory enquiry.2-3 Reasons must be recorded for rejecting a surety.4 Rejection a surety cannot be perfunctory. It has been recognised for long, that the ground on which a Magistrate has power to refuse to accept any surety must be a valid and reasonable ground.5

1. Para. 310, supra.

2. Abdul Khan (in re:), (1906) 10 CWN 1027 (1028) (Ormond and Gupta JJ.).

3. Akbar Ali v. Emp., 1914 ILR 42 Cal 706.

4. Rayaii, 1916 ILR 43 Cal 1024 (1026, 1027) (Mookerjee and Sheepshanks JJ.). (Reviews case-law).

5. Narain Sooboddhee, (1874) 22 WR Cr 37.

312. The third and fourth points contemplate a time limit, for completing the inquiry. But it is doubtful if it would be workable. To insert a rigid rule, that if the inquiry is not finished within the prescribed time-limit, the surety must be accepted, may not be advisable. It may even induce some Magistrate to hold a very perfunctory inquiry in order to comply with the time-limit, thereby substituting another evil in place of any evil in the form of delay that may be existing. It is true, that it is desirable that the order rejecting etc. the surety should be passed within a reasonable time.1 This would enable the accused to furnish fresh sureties.

The matter, however, seems to require administrative action rather than legal amendment.

Having regard to the fact that attempts are sometimes made to sue Magistrates for detaining a person in alleged violation of the procedure provided by the section,2 it appears to be desirable to avoid a categorical provision.

1. Maung Tun v. K.E., AIR 1925 Rang 353.

2. Cf. Lakshmi Narain Singal, AIR 1962 All 137.

313. Section 123(2) and Magistrates empowered.-

No changes appear to be necessary regarding the Magistrates empowered under section 123(2).

314. Section 123 and suggestion to delete confirmation by Sessions Judge.-

It has been suggested that sub-sections (2), (3), (3A) and (3B) of section 123 of the Code may be deleted. The suggestion has been made by the U.P. Committee for Investigation into corruption in subordinate Courts.1

The Committee's reasoning was, that the hands of the Sessions Judges were too full.

1. F. 3(2)/55-L.C. Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, p. 43, middle, Draft at p. 227.

315. We have considered the suggestion carefully. But we venture to think, that the suggested change is too radical, and the reason given does not, with great respect, justify it.

Section 123(2) contemplates that the Sessions Judge must form his independent opinion1 as to the propriety of the order, the period and amount. He has to deal with the case on merits.2 This provision has been there, at least since 1882. In fact, the Code of 1898 substituted "Sessions Judge" for "Court of Session". The order passed by the Sessions Judges become the order in the case.2 These points show the importance attached by the legislature to confirmation by the Sessions Judge. We would not be prepared to alter, these salutary provisions, without strong and compelling reasons.

1. Mangal Singh v. Crown, AIR 1928 Lah 189 (191) (Tek Chand, J.) (Reviews cases).

2. Emp. v. Amir Bala, 1911 ILR 35 Bom 271 (274).

316. Sections 124 and 125, and separation.-

With reference to sections 124 and 125, certain points arise in view of separation. These are considered below.

317. Section 124.-

In section 124, the following points require consideration:

(a) Wherever the District Magistrate occurs, the Chief Judicial Magistrate has been added in Punjab. This is to be adopted, as section 124 is to continue to apply to orders under section 106-see under (b) below. But, the respective powers of the District Magistrate and the Chief Magistrate should be defined.

(b) The cases of security under section 106 will also continue to be governed by section 124, as at present. The jurisdiction, however, will be that of the Chief Judicial Magistrate, so far as action under section 124 in respect of an order under section 106 is concerned.

(c) In section 124(2), the words in brackets "unless the order has been made by some court superior to his own" need not be omitted. The omission of these words will be misconstrued. They have this effect, that only orders of the District Magistrate himself or of his subordinate Magistrate can be interfered with.

318. History of section 124.-

As to section 124(1), the reason why certain words were omitted in 1923 can be gathered from the Statement of Objects and Reasons to the Bill which led to the Amendment Act of 1923.1

"This amendment is mainly intended to enable persons committed to prison under Chapter VII of the Code to be sent to Industrial Homes and Settlement of the Salvation Army, or to other similar Homes or Settlements, where it may be possible to reform them and make them accustomed to regular work of a kind which may be useful to them after the expiry of their period of detention. It is proposed to give a District Magistrate or a Chief Presidency Magistrate absolute power to release with or without conditions a person imprisoned for failure to give security, without the intervention of the Court of Session or High Court."

1. Statement of Objects and Reasons to the 1921 Bill, under clause 23.

319. Power to release persons imprisoned for failing to give security.-

Before the 1923 Amendment, section 124 read as follows:-

"124 (1) Whenever the District Magistrate or a Chief Presidency Magistrate is of opinion that any person imprisoned for failing to give security under this Chapter, whether by the order of such Magistrate or that of his predecessor in office, or of some subordinate Magistrate, may be released without hazard to the community or to any other person, he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this Chapter, the Chief Presidency or District Magistrate may (unless the order has been made by some Court, superior to his own) make an order reducing the amount of the security or the number of sureties or the time for which security has been required.

(3) Whenever the District Magistrate or a Chief Presidency Magistrate is of opinion that any person imprisoned for failing to give security under this Chapter as ordered by the Court of Session or High Court may be released without hazard to the community, such Magistrate shall make an immediate report of the case for the orders of the Court of Session or High Court, as the case may be, and such Court may, if it thinks fit, order such person to be discharged."

320. Section 125.-

In section 125, the following points have been considered:-

(a) The Chief Judicial Magistrate may be added; and the respective powers of the District Magistrate and the Chief Judicial Magistrate may be defined.1

(b) For the words "under this Chapter", it is not necessary to substitute the words "under section 118".1

(c) The words "not superior to his court" need not be omitted1

1. Cf. discussion regarding section 124.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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