Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Neur Ahir vs Emperor on 3 August, 1928
Equivalent citations: AIR 1928 All 755, 113 Ind Cas 79
Author: Dalal


Dalal, J.

1. One Neur Ahir was called upon by a Deputy Magistrate of Ghazipur under Section 109, Criminal P.C. to show cause why he should not be hound over under Section 109, Criminal P.C., to be of good behaviour for a certain period of time. After enquiry he was discharged under Section 119, Criminal P.C. Subsequently the District Magistrate of Ghazipur took up the case in revision under Section 436 of the same Code and directed further enquiry to be made in the case by another Deputy Magistrate. It is submitted here in revision that the District Magistrate had nO jurisdiction to interfere. A District Magistrate is empowered to direct a subordinate Magistrate to make a further enquiry into the case, of any person accused of an offence who has been discharged. It is argued here that Neur was not a person accused of an offence. In Section 4(o), Criminal P.C., “offence” is defined as an act or omission made punishable by any law for the time being in force. The conduct of a person called upon to give security under part 1, Criminal P.C., relating to the prevention of offences would consist of a number of acts or omissions and would not be described as one act or omission to come within the definition of “offence.” The act or omission further has to be punishable by any law for the time being in force. The word “punishable” is not defined in. Section 4, Criminal P.C., where however, it is indicated that words and expressions used therein and defined in the Indian Penal Code and not therein before defined shall be deemed to have the meaning respectively attributed to them by this Code. Referring to that Code for a definition of punishment it appears that punishment is described in Section 53, Penal Code, by an enumeration which it may be taken is considered exhaustive. The giving of security is not included in the list of punishments given In Section 53.

2. This Court in conflict with the opinion of some other High Courts has held the opinion that under Section 436, Criminal P.C., a District Magistrate had jurisdiction to revise the case of a person who had been called upon to give security and was discharged. Emperor v. Fyazuddin [1901] 24 All. 148, is one of a series of cases. In 1923, however, by Act 18 of 1923 the provisions of Section 436, Criminal P.C., have been amended and the words “any accused person” have been replaced by the words any person accused of an offence.” The editor of Sohoni’s Criminal Procedure Code has not given it as his opinion that the law as previously existed has been altered by the amendment. He has quoted conflicting authorities and made note of the disagreement between this Court and the Madras High Court. It appears, however, that when conflict of authority existed in 1923 the legislature must have made the amendment with a view to removing the conflict and adopting one of the two conflicting views. For reasons given above I am of opinion that the view of law taken by the Madras High Court has been preferred. Velu Tayi Ammal v. Chidambaravelu Pillai [1910] 33 Mad. 85. The learned Chief Justice of this Court held the view in one case that the provisions of Section 436 do not cover a discharge under Section 119, Criminal P.C.,. Roshan Singh v. Emperor A.I.R. 1924 All. 592. It is true that in that case the law was not discussed as the learned Government Pleader accepted the contention of the applicant in revision in that case. As, however, I am of the opinion that the law has been altered to bring it in conformity with the view of the Madras High Court, that view should now be accepted by this Court. I direct that no further proceedings shall be taken against Neur Ahir and that the order of his discharge of 11th June 1928, be maintained.

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