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Calcutta High Court
Nakhi Lal Jha vs Queen-Empress on 1 February, 1900
Equivalent citations: (1900) ILR 27 Cal 656
Author: Prinsep
Bench: Prinsep, Stanley

JUDGMENT

Prinsep, J.

1. The rule must be made absolute on both the grounds stated.

2. This is a reference to the Sessions Judge under Section 123 of the Code of Criminal Procedure, the person bound over to give security for good behaviour not being able to furnish security, and being in consequence liable to imprisonment, under the Magistrate’s order, for the term of three years, subject to confirmation by the Sessions Judge. We have no doubt that, on hearing such a reference, the Sessions Judge is bound to give notice to the person concerned and also to hear him by pleader, if he should be so represented. The Sessions Judge in his judgment seems to think that this was unnecessary, and that it was only, if he thought that there were good grounds for requiring a pleader to appear before him, that he was bound to allow such appearance. Section 340 of the Code of Criminal Procedure declares that every person accused before a Criminal Court may of right be defended by a pleader, and the term “accused” in that section has been held to apply to a person situated as the petitioner in the matter before us. In the next place, the Sessions Judge, in confirming the order of the Magistrate in regard to the imprisonment of the petitioner in consequence of his being unable to furnish the necessary security, was bound to find a special ground, on which the order is passed, having special reference to Section 110. He has only found in general terms that it is for the interests of the community at large that the defendant should be bound over to be of good behaviour. That is not a sufficient finding. The order of the Sessions Judge must, therefore, be set aside, and he is directed to hear the reference in accordance with law.


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