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Madras High Court
Palaniappa Asary And Ors. vs Emperor on 10 March, 1910
Equivalent citations: (1911) ILR 34 Mad 139
Author: Miller
Bench: Miller


ORDER

Miller, J.

1. The Subdivisional Magistrate proceeding under Section 117 as nearly as practicable in the same way as under Section 242, Criminal Procedure Code, had to state to the accused, so to style them, the particulars of the matter against them and ask them if they could show cause why they should not be required to execute bonds.

2. He says that he made an order under Section 112, an order which appears in the form of a summons, and I understand that that order was explained to the accused.

3. But the Subdivisional Magistrate instead of asking them if they were prepared to show cause why they should not be required to execute bonds put this question to them:

Are you willing to execute the bonds required, or do you wish for further enquiry?

4. And they replied that they would execute bonds. It seems to me that this was a misleading question not calculated to ascertain the truth of the information against the accused. They were not asked whether the information was true or false and they did not admit its truth. By Section 117 the Magistrate is required to satisfy himself by enquiry of the truth of the information before making an order for the execution of the bond, and though it may be that the question put under Section 242 is sufficient enquiry if it produces an answer which shows that the information is true, no such answer was obtained in the present case.

5. The enquiry under Section 117 being irregular, the order of the Subdivisional Magistrate must be set aside.

6. It is not clear to me, and it is not necessary to decide, that the procedure Of the Second Class Magistrate was irregular as the District Magistrate suggests; nor do I decide whether the District Magistrate was right in his view of his powers under Section 125, Criminal Procedure Code. The decision to which he refers has, however, been overruled by a Full Bench of the Calcutta High Court [Nabu Sardar v. Emperor (1907) I.L.R. 34 Calc. 1].

7. It is probable that there exists no reason for further proceedings, and the Public Prosecutor does not ask for any order.

8. The orders are set aside and the bonds cancelled.


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