P L D 1955 Sind 439 (PLP)

MEHAK, J.‑This is an application under section 491, Criminal Procedure Code, by one Rupomal, who was arrested under the Sind Frontier Regulation (Regulation No. III of 1892). The facts are that the applicant was arrested for an offence under section 19 (f) of the Indian Arms Act and released on bail. Thereafter he was arrested, it is alleged, on 28th August, 1947, on a warrant of arrest issued by the District Magistrate, Sukkur, under the Sind Frontier Regula tion. It appears that on 4th September, 1947, an application was made for bail to the District Magistrate complaining of the illegal detention of the applicant and drawing attention to a ruling of this Court reported in Jandalshah v. The Crown ((1947) 48 Cr. L J 372). No orders appear to have been passed on that application and the applicant made an application to this Court under section 491, Criminal P. C. It might be mentioned here that a Bench of this Court held in the ruling referred to above that a person arrested under the Sind Frontier Regulation cannot be detained if he can give solvent sureties, that the powers conferred by section 117, Criminal P. C., are not exerciseable under the Regulation, and that the ordinary law applicable in the matter B of releasing on bail on taking solvent sureties is applicable to persons arrested under the Regulation. This Court passed an order on 13th September directing that the applicant be released on bail on giving surety in the sum of Rs. 5,

000. It appears that on 12th September, 1947, an order had been passed by the District Magistrate, Sukkur, on the analogy of section 117 (3), Criminal P. C., and that this order was read out to the applicant on 15th September. This order required the applicant to execute a bond with two sureties of the description required in the original order for good behaviour until the conclusion of the inquiry under section 20 of the Sind Frontier Regulation. At the same time the District Magistrate wrote a letter to the Registrar of this Court in the course of which he has stated: "In this case accused Rupo has been ordered to be released on bail in the sum of ks. 5,

000. An order on the analogy of subsection (3) of section 117, Criminal P. C., has been passed against him, and therefore he cannot be released on bail". By this letter he also requested that the Advocate-General might be heard before his order was reversed. Along with his letter was forwarded an opinion of the Remem brancer of Legal Affairs, which had been forwarded by that officer to the District Magistrate. In that opinion the Remembrancer of Legal Affairs has questioned the correct ness of the ruling of this Court and pointed out that subsection (3) of section 117, Criminal P. C., was inserted for the first time in 1923 and was in the nature of an independent provision, that the point that this subsection was added in 1923 was not noticed in the ruling of this Court referred to above and that on a proper construction of section 22 (3) of the Sind Frontier Regulation the power under section 117 (3) Criminal P. C. is not excluded by section 22 (3) of the Regulation and can be exercised in a proceeding under the Regulation. Then the Remembrancer of Legal Affairs went on to say: "I brought this point to the notice of the Advocate General, and he agrees that the Chief Court overlooked the point just mentioned. He is also of the view that the Chief Court's ruling may, therefore, be disregarded for the present and, that persons proceeded against under section 20 may be required to give a 'Fit' surety before they are released". The learned Advocate‑General assures us that he had expressed no such opinion, namely that the ruling of this Court should be disregarded ; it appears to us to be improper for a law officer of the Crown to advise officers to disregard a ruling of this Court. We have taken into consideration the grounds on which it is sought to challenge the correct ness of this ruling. Section 22 (3) of the Sind Frontier Regulation lays down "Sections 112; 113, 115 and 117 of the Code of Criminal Procedure, 1882 shall not apply to an inquiry under this section, but the District Magistrate shall record his order with the reasons for making it". The Code of Criminal Procedure of 1882 was repealed and the Code of 1898 was enacted, which is the present Code in which section 117 corresponds to section 117 of the old Code Subsection (3) of section 117, Criminal P. C., was added by an amendment by section 11 of the Code of Criminal Procedure (Amendment), Act, 1923 (XVIII of 1923). That subsection empowers a Magistrate where he considers immediate measure are necessary for the prevention of a breach of the peace, or disturbance of the public tranquality, etc. to direct the person against whom proceedings under section 112 have been taken to give security until the conclusion of the inquiry, or in default of execution until the inquiry is concluded. Now section 3 of the Criminal P. C., lays down: "In every enactment passed before this Code comes into force, in which reference is made to, or to any chapter or section of, the Code of Criminal Procedure, Act XXV of 1861 or Act X of 1872, or Act X of 1882, or to any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding chapter or section". In view of the provisions of this section, the reference to section 117 of the Code of Criminal Procedure. 1882, in the Sind Frontier Regulation must be deemed to be made to the corresponding section in the present Code of Criminal Procedure. Now it is true that clause (3) of section 117 was added to the Criminal Procedure Code by an amendment in 1923 and that point has not been referred to in the judgment of the Bench referred to above. But we think that the fact that clause (3) was added to section 117, Criminal P. C., in 1923 makes no difference to the correctness of the reasoning in the Bench decision in view of the rule of interpretation laid down in section 3 of the Criminal P. C., and section (8) (1) of the General Clauses Act. The whole of section 117 Criminal P. C., will not apply to proceedings under the Sind Frontier Regulation, and section 22 (3) of the Sind Frontier Regulation referring to section 117 of the Code of Criminal Procedure cannot be interpreted as referring to the repealed Code of Criminal Procedure. If it is con sidered that in a proceeding under the Sind Frontier Regulation the District Magistrate should have the power under section 117 (3), Criminal P. C., then section 22 of the Sind Frontier Regulation can be suitably amended. But as the law stands at present an order on‑the analogy of, section 117 (3), Criminal P. C., as has been passed by thed District Magistrate in this case, is not permissible. Of course, it was open to the District 'Magistrate to take pro ceedings against the applicant under Chapter VIII, Criminal P. C., and then after passing an order under section 112 Criminal Procedure and reading it out to the person proceeded against the District Magistrate could have if there was proper material, passed an order under section 117 (3), Criminal P. C. But that is not the case here. We are, therefore, of the view that the true legal position is that set out in the ruling of a Bench of this Court, referred to above, with which with respect, we agree. The learned Advocate‑General informs us that he has been instructed by the District Magistrate to say that on receiving the order of this Court directing the applicant to be released on bail, he sent a letter to the Advocate-General by a special messenger in which he stated that it should be brought to the notice of this Court that he had acted on the analogy of section 117 (3), Criminal P. C., in accordance with the instructions of Government and whether in the circumstances he should carry out the order of this Court to release the accused on bail. The learned Advocate-General replied to him that the order of this Court to release the applicant on bail must be carried out. About the time that the District Magistrate received the reply from the Advocate‑General, he came to know that the Sind Frontier Regulation had not been extended to Sukkur and he therefore released the applicant without taking any surety. Thereafter the Sind Frontier Regulation was extended to Sukkur district and then the applicant was re‑arrested under orders of the District Magistrate, who at the same time ordered that if the applicant gave bail in terms of the order of this Court he should be released on bail. We therefore, confirm the interim order for bail passed by this Court on 13th September, 1947. TYABJI, C. J.‑When this application under section 491, Criminal P. C., was presented to us on the 13th September, the position was as follows : The applicant Rupomal had been arrested under the Sind Frontier Regulation on the 28th August, and had been detained in custody. It is alleged that no opportunity was offered to him to give bail. His wife Gangabai made an application praying that her husband be released on bail. This application, though, dated the 4th September, was, it is clear, not presented to the District Magistrate of Sukkur till the 12th September at Shikarpur. The learned Magistrate made an order thereon which, inter alia, contains the following : "In these days of communal tension, it is necessary that such persons should be severely dealt with, and under the analogy of subsection (3) of section 117 Criminal P. C., as I consider that immediate measures are necessary to prevent a breach of the peace and tranquility, I order that these persons should execute a bond as stated in the original order, that is each should execute a bond in the sum of Rs. 2,000 with two sureties for the like amount for maintaining good behaviour until the conclusion of the inquiry". It is quite clear from the order passed by the learned District Magistrate that it was argued before him that section 117 (3), Criminal P. C., was not applicable, and the ruling of this Court in Jiandalshah v. The Crown ((1947.) 48 Cr. L J 372) was cited, we are told, to the Magistrate. The District Magistrate stated with regard to this in his order: "Section 22 of the Frontier Regulation does exclude the provisions of section 117 Criminal P. C. for an inquiry under this section, but that was section 117 as it stood when the Sind Frontier Regulations were passed in the year 1892. Section 117 (3) Criminal P. C. was added in the year 1923. Therefore section 117 (3) should under the provisions of section 27 Sind Frontier Regulation apply to inquiries under section

22. The applicant should there fore be directed to produce sureties for good behaviour and the question of bail at this stage does not arise". It is now clear that the learned District Magistrate relied o an opinion given by the. Remembrancer of Legal Affairs on the 29th April, 1947 which had been communicated to him. This application before us was presented on the next day, when we passed an interim order, that the applicant be released on bail. The legal position, it seem to me is quite clear and it is as it was stated in Jiandalshah's case. It is true that the fact, that clause (3) of section 117 was added in 1923, was not particularly noticed in Jiandalshah's case. But having regard to section 8 of the General Clauses Act, and more particularly section 3 of the Criminal P. C., there can be no doubt that at the present the Sind Frontier Regulation, as it stands, must be read together with the Criminal P. C., as it stands today. There is no reason whatever, therefore, for thinking that the decision in Jiandalshah's case would have been different, if this fact had been brought to the notice of the learned judges at the time when that decision was made. It is clear, therefore, that the applicant is entitled to bail while the proceeding under the regulation is pending against him, and I agree, that the interim order passed by us, granting bail to the applicant, must now be confirmed. It is hardly necessary to point out that Chapter VIII, Criminal P. C. is applicable to Sukkur, and it contains ample provision for dealing with cases where immediate measures are necessary for the prevention of a breach of the peace. In a case where there is reason to think that a really dangerous person is likely to commit a grave offence, proceedings can be very quickly taken against him, in strict conformity with the provision of the Code, and, where it is necessary to do so, such a person can be locked up without any delay. A very great grievance was made on behalf of the applicant regarding the conduct of the District Magistrate of Sukkur. Although the ruling in Jiandalshah's case was brought to his notice, on the 12th September, the learned Magistrate refused to act in accordance with that decision. It is further clear that when the order, passed by this Court on the 13th September, was brought to the notice of the District Magistrate, we are told, on the 14th September, the District Magistrate did not forthwith carry that order into effect. It must be made clear that the District Magistrate was in error, and acted in a manner which must be gravely disapproved of, in both these matters. It is obviously highly improper for any subordinate Court to question any decision of this Court, and it amounts to a contempt of this Court to fail to carry out an order passed by this Court, after it was properly communicated to the Magistrate. In this particular case there were circumstances which placed the District Magistrate in a situation which was somewhat unusual, and it is clear that he was misled by the opinion of the Rememb rancer of Legal Affairs. On receipt of a copy of the order passed by this Court, the District Magistrate immediately sent a messenger to the Advocate‑General at Karachi, intimating to the Advocate‑General his belief that the facts of the case had not been properly brought to the notice of this Court, and on receiving the reply of the Advocate-General, the District Magistrate forthwith acted in compliance with the order passed by this Court. Even so we must emphasise that all subordinate` Courts must, without any question, forthwith carry out the orders of this Court. If they consider that any further needs to be brought to the notice of this Court, the proper steps must be taken after they have carried out the orders. The opinion expressed by the Remembrancer of Legal Affairs on the 29th April, 1947, (a copy of which was for warded by the District Magistrate to the Registrar of this Court, along with a letter) contains the following: "I brought this point to the notice of the Advocate‑General, and he agrees that the Chief Court overlooked the point just mentioned. He is also of the view that the Chief Court's ruling may, therefore, be disregarded for the present and the persons proceeded against under section 20 may be required to give a `Fit' surety before they are released". The Advocate‑General has assured us that he never gave any such opinion, and that it was quite impossible for him to give any such opinion. On receiving the District Magis trate's letter, the Advocate‑General forthwith wrote back pointing it out to the District Magistrate that tile order passed by this Court must be carried out, and that the ruling of this Court in Jiandalshah's case must be regarded as binding, unless and until it was overruled. It is very surprizing that a law officer, like the Remembrancer of Legal Affairs, should have permitted himself to suggest that a ruling of this Court should "be disregarded", and we consider it necessary to express our gravest disapproval of this. A. H. Order for interim bail confirmed.