ORDER
Narayan, J.
1. This application is directed against an order of the Sub-Divisional Magistrate of Araria calling upon the petitioner to execute an interim bond for maintaining good behaviour until the conclusion of the case which was started against him according to the provisions of Section 110, Criminal P. C.
2. On 15-3-1951 the police submitted a report to the learned Sub-Divisional Magistrate for proceeding against the petitioner under Section 110, Criminal P. C., and on 30-5-1951 an information was lodged by one Sunder Mohan Thakur of village Bargachi tola Jahanpur to the effect that a dacoity has been committed in his house in the night of 28-5-1951 by some unknown persons. Before this information could be lodged the petitioner had been released on bail by the learned Sub-Divisional Magistrate and after this information had been lodged the police made a prayer before the learned Sub-Divisional Magistrate for taking him in custody in order that he might be placed on a test identification parade. This prayer was allowed and a test identification parade was held on 24-6-1951 in which neither this petitioner nor any of the other suspects could be identified by any of the witnesses produced by the police or the prosecution.
On the very date on which the test identification parade was held, that is, on 24-6-1951. the police filed a petition before the learned Sub-Divisional Magistrate praying that the petitioner be released from custody in the dacoity case but that he should be detained in connection with Section 110 case as he is by habit a dacoit and a burglar and has been suspected in the said dacoity case. It appears that this prayer of the police was considered by the
learned Sub-Divisional Magistrate on 5-7-1951 on which date he directed that the petitioner must execute an interim bond under Section 117(3), Criminal P. C. for Rs. 1000 with two sureties. The order of the learned Magistrate undoubtedly shows that he was influenced by the consideration that the police had suspected that this applicant was one of the persons who had committed the dacoity in village Bargachi tola Jahanpur. It is significant that the learned Sub-Divisional Magistrate had released this petitioner on bail in spite of the proceeding under Section 110, Criminal P.C. and he was on bail until the police prayed before the learned Sub-Divisional Magistrate for detaining him in custody for the purpose of holding tho test identification parade. The statement by the police to the effect that “due to excessive influence of sympathisers of these terrorists the P. Ws. could not identify them on T. I. Parade” is a statement which should not have been seriously considered by the learned Magistrate for the simple reason that it is a vague statement and could not be supported by any tangible material. The other statement made by the police was that the applicant was by habit a dacoit and a burglar. This allegation was not seriously pressed at the time when the petitioner was released on bail or until the time when the prayer for taking him in custody was made on account of the dacoity case. The fact that the police had suspected that this petitioner was one of the persons who had committed the dacoity should not have weighed with the learned Sub-Divisional Magistrate and should not have been made a ground for demanding an interim, bond when at the test identification parade nobody was able_to identify him, and there does not appear to be any other material on the basis of which either the police or the Magistrate could have demanded an interim bond from him.
It is true that Section 117(3) does not contemplate that the Magistrate for the exercise of his powers under this sub-section should take evidence on oath, but a prayer for demanding an interim bond has to be considered with care and circumspection. An order under Section 117(3) is not to be regarded as a routine order and the final orders in the case are not to be anticipated at the stage of passing such an order. The Magistrate has to give careful consideration to the separate case of emergency as contemplated by Section 117(3) of the Code and he must be satisfied that immediate measures are necessary. I have already pointed out that the petitioner had been released on bail and that it was fairly long after the police had submitted the report for taking action against him under Section 110 that they came forward with the prayer that he should be taken in custody for the purpose of holding a test identification parade. But for an occurrence of dacoity this sort of prayer could not have been made by the police and the suspicion of the police cannot be a good reason for demanding an interim bond from the petitioner when he could not be identified as one of the dacoits at the test identification parade. The order, therefore, was, in my opinion, not justified.
3. In the result the application is allowed
and the order of the learned Magistrate de
manding an interim bond from the petitioner
is set aside.