22. ***[Omitted].
LHC - Shahrah-e-Quaid-e-Azam -
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1. ***[Omitted].
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[2. Important preliminaries. - In the first stage of the proceedings in cases under sections 107 and 110 of the Code of Criminal Procedure, and before actual enquiry is made in the presence of the accused, three points need attention, viz:-
(1) the information (sections 107 and 110);
(2) the order thereon, including the substance of the information (section 112); and
(3) communicating the same to the accused (sections 113 and 115).]
3. Preliminary enquiry.-- The information is the foundation of the whole proceeding, and the fact, that the Magistrate is acting upon information, should be recorded. No information should be acted upon unless it comes from a trustworthy source and is sufficient, if substantiated and not rebutted, to justify finding that the person is himself likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may occasion a breach of the peace or disturb public tranquility (section 107) or answers to one or more of the specific descriptions given in 110. In regard to proceedings under section 107, it should be borne in mind that a person in the exercise of a lawful right cannot be bound over merely because other persons object to the exercise of such right and there is likelihood of their causing a breach of peace. ***[...] Applications under section 107, Criminal Procedure Code, are sometimes of a frivolous and vexatious character, intended to bring pressure upon the opposite party to settle which is really a dispute of a civil nature. Care should, therefore, be taken to ascertain by such preliminary enquiry as may be necessary that there is sufficient ground for proceeding under the section.
4. Contents of the order to proceed against.-- If the Magistrate deems it necessary to proceed against the person against whom information has been received, he should record an order setting forth the several matters required by section 112 of the Code of Criminal Procedure. The substance of the information received should be stated in the order with sufficient fullness to enable the accused person to understand clearly the matter he has to meet in his defence. In recording particulars of the security required, the provisions of the proviso to section 118 of the Code should be borne in mind.
5. Security pending inquiry.-- In proceedings under section 107, Criminal Procedure Code, a Magistrate has the power, in cases of emergency when a breach of the peace is imminent, to order the accused person to furnish security pending the completion of enquiry [vide section 117 (3), Criminal Procedure Code]. He must in such cases record his reasons in writing.
6. Order to proceed to be communicated to accused.-- The order recorded under section 112 of the Code of Criminal Procedure should be communicated to the accused person, if he is present in Court, by reading the same to him; and, if he so desires, by explaining the substance thereof to him. If the accused person is not present in Court, a copy of the order should be annexed to the process requiring his attendance, and delivered to him by the serving officer with the process.
7. Form of process.-- Section 114 of the Code provides that the process to be issued requiring the appearance of an accused person shall be a summons, unless the person is in custody, in which case a warrant will issue to the person in whose custody he is. If the Magistrate is satisfied that there are reasonable grounds for apprehending a breach of the peace and that it cannot be otherwise prevented, he may issue a warrant for the arrest of a person not in custody. In every such case, the Magistrate should record the grounds which render the issue of a warrant necessary.
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[8. Procedure for the commencement of the trial.- After the preliminary proceedings are completed and the accused appears before the Court the enquiry as to the truth of the information upon which the Magistrate has acted shall be made, as nearly as may be practicable, in the manner prescribed in Chapter XX of the Code of Criminal Procedure, for conducting trials and recording evidence, except that no charge need be framed (S.117). Care, however, is necessary that the person complained against shall have a full opportunity of making his defence and of supporting it by witnesses, an adjournment being given, if necessary for that purpose.
9. Proof required and exercise of discretion with caution.- (i) On the conclusion of the enquiry, the Magistrate must consider the order to be passed. The first point to consider is, whether the information against the accused is proved to be true. In cases under section 110, if the accused is proved to be a person falling within any of the descriptions stated in that section, the Magistrate should record a distinct finding of the specific description which he considers proved. The words `by habit' or `habitually' which occur in all the clauses of section 110, imply that the accused person has done the alleged acts repeatedly, or persistently and this should be capable of proof by adducing definite evidence under section 117(4) of the Code of Criminal Procedure. Evidence of general repute is admissible, but mere suspicion of complicity in this or that isolated offence may not be sufficient to satisfy the requirements of section 119.
The Magistrates shall see that section 110 is not abused and is not resorted to merely for securing punishment of persons who are suspected but not proved to have committed an offence and to harass individuals or to take security from persons who have once been accused and convicted of an offence but who have got off on appeal. It cannot be too firmly impressed on all Magistrates acting under Chapter VIII of the Code that when a conviction "fails on appeal", it is no conviction at all.
(ii) The object of the proceedings under section 110 of the Code of Criminal Procedure is to deter and not to punish. A convict just released from jail should not as a rule, be put upon security until there has been a fair opportunity of judging whether the punishment he has already undergone is not in itself a sufficient deterrent against relapse into evil courses. Then, in cases under section 110, proof of habitual misconduct will ordinarily justify the conclusion that security is necessary, but the Magistrate has a discretion in the matter, and he may not, in the circumstances of a case, dispute the proof of habitual misconduct, to make an order of security.]
10. Nature, amount and period of security.-- If the Magistrate decides that security is necessary the next step is to determine--
(1) the amount and nature of security to be given; and
(2) the period for which it is to be given.
In considering these points the Magistrate should be careful to refer to the original order to see that the security and the period therein specified are not exceeded. Further, as to amount of the bonds is to be fixed with due regard to the circumstances of the case and is not to be excessive, it should appear upon the record that the security demanded is not disproportionate to the ability of the accused person to furnish it, having regard to his status in life.
11. Age of accused.-- When the appearance of the *[person complained against] leaves it doubtful whether he is a minor, his age should be ascertained.
12. Action to be taken when security is not necessary.-- If it is not proved that security is necessary, the Magistrate *[shall] act under section 119, according as the person is in custody, for the purpose of the enquiry merely, or is not in custody.
13. Final order should state full particulars about bonds required.-- When the final order is made under section 118, it should state clearly--
(1) the amount of the bond;
(2) whether it is to be with or without sureties, and the number of such sureties;
(3) the period for which security is to be given.
If the proceedings are in English, the order must be translated into *[Urdu] and signed by the Magistrate.
14. Joint trials and period of security.-- It is frequently found that-
(i) several persons are proceeded against jointly, although there is little or no evidence that they are really associated together for the purposes of any of the crimes referred to in section 110 of the Code of Criminal Procedure;
(ii) security is demanded for a period exceeding one year without any reason, such as previous convictions for serious crime, or previous taking of security, being assigned for the step.
The irregularity of the first proceeding has been pointed out in more than one published decisions of the High Court, and, as regards the second point, the Judges are of opinion that the period for which security is demanded should not in ordinary cases exceed one year, and where special reasons exist for enlarging the period, these should be duly set forth in the order.
15. Bond should be single and no stamp is required.-- It has been noticed that in many Courts the practice is to require the accused person to execute one bond, and the sureties, separate bonds (sometimes for separate amounts). This is not in accordance with law. The person, from whom security is taken, and his sureties should all execute only one joint bond, in the form prescribed in the Code of Criminal Procedure, Schedule V (Form XI).
The bond is exempt from stamp duty, as regards the sureties, under Government of India Notification No. 4650, dated 10th September, 1889, and as regards the principal under section 19, clause (xv) of the Court Fees Act, 1870.
16. Commencement of period of security, suspension of order and Form of warrant when security is not furnished.-- When the person from whom the security is required is not under sentence of imprisonment, or undergoing such a sentence, the period commences to run from the date of order, unless the Magistrate, for sufficient reason, fixes a later date. If the Magistrate has reason to believe that the person required to give security will do so if a short time be allowed for that purpose, the Magistrate should defer execution of his order by suspending it, and thus obviate the necessity for requiring such person to at once suffer imprisonment. If, however, the requisite security is not given on the date fixed, the person from whom the security is required must be committed to prison under section 123, with a warrant in Form XIV of Schedule V of the Code of Criminal Procedure, if the period fixed does not exceed one year. When the period exceeds one year, the form must be varied so as to bring its last clause into conformity with the second clause of section 123; and the proceedings must be laid, as soon as conveniently may be, before the Court of Session.
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[17. Kind of imprisonment in default of security.-- Imprisonment in default of furnishing security under section 107 or section 108 must be simple, while under section 109 and section 110, it may be simple or rigorous at the discretion of the Magistrate (vide sub-section (5) and (6) of section 123).
Completion of record before consignment.- Before consigning the record to the record-room care must be taken that the record is made complete by filing either the security-bond or a copy of the warrant of commitment.]
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21. Restriction order instead of security may be proper in certain cases.-- The provisions of the *[Restriction of Habitual Offenders (Punjab) Act, 1918(V of 1918)] which permits an order of restriction being passed in lieu of an order under section 110, Criminal Procedure Code, should be utilised in appropriate cases, when there is no chance of security being furnished and an order of restriction would serve the object in view.
22. ***[Omitted].
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