1. It would have been better had the Assistant Magistrate followed the course pointed out by the presiding Judge in the case of. The Empress v. Partab 1 as the proper course to be adopted.
2. We direct that the order passed under Section 505 of the Criminal Procedure Code be set aside, and leave it to the Assistant Magistrate to follow the course prescribed in Section 504, Clause 2, if he thinks proper.
1 I.L.R., 1 All., 666. In this case Spankie, J., said: “In making an order for security for good behaviour, I presume that the Magistrate holds the powers of a first class Magistrate, and that ha was acting under Section 505 of the Code of Criminal Procedure. I have some doubt whether the Magistrate had adduced before him such evidence as to general character as to justify his dealing with the accused for the offence of which he found he was guilty, and in the record of the trial I find no evidence from which it could be gathered that the accused was by repute a receiver of stolen property. But the prisoner certainly allowed that he had been punished twice for theft, and here he was again tried and found guilty of receiving stolen property. I am therefore unwilling to disturb the order. But the order should be no part of the sentence for the offence of which accused was convicted. There should have been a proceeding drawn out representing that the Magistrate, from the evidence as to general character adduced before him in this case, was satisfied that Partab was by repute an offender within the terms of Section 505 of the Criminal Procedure Code, and therefore security would be required from him. But as he had been sentenced to two years’ rigorous imprisonment, which term has not expired, an order should have been recorded to the effect that, on the expiration of the term, the prisoner should be brought up for the purpose of being bound (cl. 2, Section 504).”