P L D 1953 Baluchistan 24 (PLP)

R. K. M. SAKER, J. C.‑This is a revision petition3Zunder the provisions of sections 435 and 439 of the Cr. P. C. against the judgment of the learned District Magistrate. Quetta Pishin dated 3rd September 1952, who on appeal upheld the order of the City Magistrate, Quetta directing the petitioner to furnish security under section 118, Cr. P. C. for good behaviour. The facts of the case are relatively simple, namely that the petitioner was seen at about 1‑45 a.m. with his shoes in his band watching certain persons who were asleep in a public park. As the movements of the petitioner were suspicious, he was challenged by a certain Police patrol, whereupon he tried to run away but was ultimately arrested. It is further alleged that when he was questioned regarding his movements and his means of livelihood, he gave no satisfactory reply. As a result of the information lodged with the learned City Magistrate, he took cognizance tinder the provisions of section 109, Cr. P. C. and issued a notice to the petitioner under the provisions of section 112, Cr. P. C. after which the evidence of three prosecution witnesses, all of whom were members of the police, was recorded. The learned City Magis trate then passed an order under the provisions of section 118 of the Cr. P. C. directing that the petitioner would furnish the necessary security. The orders of the two lower Courts have been assailed on several grounds before me and it is necessary for me to consider the manner in which the proceedings against the petitioner have been taken to see whether they are in accordance with the provisions of the Security Chapter. Section 109, Cr. P. C. has two subsections and from the record it is clear that subsection (b) only is applicable to the case before me. This subsection is reproduced below :‑ "That there is within such limits a person who has no ostensible means of subsistance or who cannot give a satis factory account of himself. Such Magistrate may, in manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period not exceeding one year, as the Magistrate thinks fit to fix." From the wording of this subsection it is clear that there must be one of two requirements before any person can be called upon to furnish security. Either he must have no ostensible means of subsistance or he cannot give a satisfactory account of himself. It would of course be legally permissible, if the information so warranted; to make use of both these requirements before security were demanded. Learned coun sel for the petitioner has first drawn my attention to the fact that the order issued under section 112 of the Cr. P. C. which is in printed form, stipulates that the petitioner had no osten sible means of subsistance and could not give a satisfactory account of himself. It follows, therefore, that in terms of the wording of the order served upon the petitioner, he was expected to give some explanation in regard to both these allegations before he was called upon to furnish security. Equally, the Court had to satisfy, itself after proper inquiry that both and not one of these ingredients had been proved against the petitioner. The manner in which the proceedings against the peti tioner has been recorded leaves much to be desired, for it is a mandatory provision of law that when proceedings under section 109, Cr. P. C. are taken the provisions of section 117,1 Cr. P. C. are applicable namely that the proceedings should' follow, as near as may be, the procedure for warrant cases. In brief, therefore, the correct procedure for a Magistrate, who takes cognizance under the provisions of section 109, Cr. P. C. is that, in the first place, he is bound to make an order under section 112, Cr. P. C. and then read it to the per son concerned or summon him to appear under section 113 or section 114, Cr. P. C. as the case may be. In response to that notice the Magistrate is then bound to hold a proper inquiry as, if it were a warrant case by the recording of the prosecution evidence, the recording of the statement of the accused if any, and the recording of the evidence for defence, if any; .and only difference being that there is no necessity to frame a charge. It also follows, as a matter of course, that the accused must be given opportunity to cross‑examine the prosecution witnesses if he desires to do so. The proceedings in this case indicate to me that the pro cedure has not been followed. In the first place, the printed form for the use of section 112, Cr. P. C. has the word "and" between the words "ostensible means of subsistance" and "cannot give a satisfac tory account of himself." In order to conform strictly to the provisions of section 112, Cr. P. C. the word "and" should be substituted by the word "or". A more important matter, how ever, is the fact that in making an order under section 112, Cr. P. C. it is an essential ingredient of this section that the order must set forth the substance of the information received. In the case before me this has not been done and I consider this is an irregularity which is not curable by virtue of sections 537, Cr. P. C. The wording of section 112, Cr. P. C. is clearly mandatory and the person, who is called upon to furnish security, must be given the fullest, opportunity of knowing what the allegations are against him, so that he may be in a position to defend himself, before the inquiry under section 117, Cr. P. C. is held. This important requirement would be on the analogy of the manner in which a charge is framed in a warrant case. There it is essential that a person accused of a criminal case must know, in clear and unambi guous terms exactly what the charge or charges against him are, so that he may have the fullest opportunity to defend himself. It is of equal importance that the substance of the allegation must be set forth when making an order under section 112, Cr. P. C. I now come to the manner in which the inquiry was held. The record indicates that only three prosecution witnesses were examined, all of whom are police officials. There is no indication from the record that the petitioner was given any opportunity to cross‑examine them. The petitioner's statement was also not recorded after the completion of the prosecution evidence, and finally, the petitioner was not apparently given any opportunity to produce defence witnesses. Circumstances may of course arise in which an accused person does not wish to cross‑examine prosecution witnesses or to make a statement or to produce any defence ; but if there were the circumstances in the case before me the record should have indicated that fact; otherwise a natural presumption will arise that the accused was not given the fullest 'opportunity to defend himself or to explain his position. I now turn to the prosecution evidence recorded in order to examine its value in this case. In dealing first with the question of whether or not the petitioner had any ostensible means of livelihood. I find that the only evidence on this point is that of the Police officials concerned who stated that on being questioned regarding his whereabouts and his means of livelihood he have no ‑satisfactory reply. This evidence is, in my view, not sufficient for the purpose of demanding secu rity. The Magistrate should have recorded fuller evidence upon this point, if it was available, for it is the duty of the Court alone to decide whether or not a reply to questions put by Police officials is a satisfactory one. No Court should act upon the bare statement of Police officials that the reply to such questions was not satisfactory. Learned counsel for the peti tioner has drawn my attention to A I R 1941 Pat. 478 in which inter alia, it was held that the statement of Police officials which is not from their own knowledge but from an inquiry made during their official duty is inadmissible for this purpose. I am in respectful agreement with this ruling. As for the question of being unable to give a. satisfactory account of himself, I equally consider the evidence recorded to be unsatisfactory for this purpose. It was held in A I R 1936 Oudh 383 that the act of a person who endeavoured to run away and who gave a false name to the Police when questioned did not justify the inference that the respondent was unable to give a satisfactory account of himself. With these views I am also in respectful agreement. The manner in which the petitioner behaved may have given rise to suspicion in the minds of the Police officials who ultimately arrested him; but suspicion alone is not sufficient for any Court to demand that such a person will furnish security. The manner in which the inquiry is to be held is such that after recording the evidence for the prosecution and for the defence, if any, the Court alone must be fully satisfied that the accused is a person from whom security should be demanded. In the judgment of the lower appellate Court stress has been laid upon the fact that the petitioner consented to give security at the time when the notice was served upon him. Learned counsel for the petitioner, however now denies this fact. Even if I were to suppose that the petitioner was prepared to furnish security, it is still incumbent upon a Court to hold an inquiry in the manner set forth above. As no proper inquiry has been held. I consider that the entire proceedings are ultra vires and that so many irregularities have been committed that I am compelled to set aside the proceedings. Accordingly the revision petition is accepted and the orders of the lower Courts are set aside. While the Security provisions of the Cr. P. C. are design ed to prevent a breach of the peace for the prevention of crime, they are certainly not intended to give free license to the Police, through the Court, to place a person on security unless there is sufficient reliable evidence to show that their freedom is a danger to the peace or that they are likely to com mit some crime. Reasonable proof is essential before security is demanded and no laxity in the procedure for dealing with such cases can be countenanced. I attach very considerable importance to the correct pro cedure which should be followed in such cases under the Security Chapter of the Cr. P. C. and I therefore once more reiterate the proper manner in which the Magistrates should deal with such cases. Briefly, it should be that if he deems it necessary to take action tinder section 109, Cr. P. C. a Magis trate should make an order under the provisions of section 112, Cr. P. C. and in so doing, it is a mandatory provision of the law that the substance of the information received be em bodied therein. A copy of the order as required by section 11 5, A Cr. P. C. should then be delivered to him when he is served with a summons under section 114, Cr. P. C. Even if the person concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of the procedure to be adopted in a warrant case, must be held under the provisions of section 117, Cr. P. C. ; and finally if, as a result of such inquiry, the Magistrate is satisfied that security should be furnished he will pass such order as he thinks fit under the provisions of section 118, Cr. P. C. It appears to me that the Courts in Baluchistan are not fully conversant with the correct procedure in such cases and an extract of this order will be furnished to all Courts throughout Baluchistan for their information and guidance. Parties present. Order announced. A. H: Petition accepted.