If the person in respect of whom such an order is made is present in the Court, the order must be read over to him, or if he so desires, the substance of the order must be explained to him. If, however, the person is not present in the Court, the Magistrate must issue a summons requiring him to appear before him. If such a person is already in custody a warrant is to be issued directing the Officer in whose custody he is, to bring him before the Court. (Ss. 112 & 113)
If there is sufficient cause, the Magistrate may even dispense with the personal attendance of the person called upon to show cause and may permit a pleader to appear on his behalf. (S. 115)
When the person is already present in the Court and the order has been read or explained to him, or when the person is brought before the Magistrate in compliance with a summons or warrant, the Magistrate must proceed to inquire into the truth of the information, upon which action has been taken, and take such further evidence as may be necessary. Such an inquiry must be made in the same manner and according to the same rules, as are prescribed for conducting trials and recording evidence in summons cases.
If the Magistrate feels that, pending the completion of such an inquiry, immediate measures are necessary for the prevention of the breach of the peace or disturbance of public tranquillity, or the commission of any offence, or for public safety, he may, after recording his reason in writing, direct such a person to execute a bond, with or without sureties, until the conclusion of the inquiry, and may detain him in custody until such bond is executed, or until the inquiry is concluded, whichever is earlier.
It may be noted that, for this purpose, the fact that the person is a habitual offender, or is so desperate and dangerous that his being at large without security would be hazardous to the community, can be proved by evidence of general repute or otherwise. (S. 116)
It is also provided that the inquiry under the section must be completed within a period of six months from the date of its commencement. If it is not completed within such period, the proceedings would stand terminated at the expiry of the six months’ period, unless the Magistrate otherwise directs, for special reasons to be recorded in writing.
Even if the Magistrate directs that the proceedings shall not stand terminated beyond the six months’ period, the aggrieved party can make an application to the Sessions Judge calling upon him to vacate the Magistrate’s direction on the ground that it was perverse, or that it was not based on any special reason.
If, after the inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry was made, should execute a bond, with or without sureties, the Magistrate may make an order to that effect. The amount of the bond is to be fixed with due regard to the circumstances of the case, and should not, in any case, be excessive. When the person in respect of whom the inquiry is made is a minor, the bond is to be executed only by his sureties. (S. 117)
If, on the other hand, at the inquiry, it is not proved that it is necessary that such a person should execute a bond, the Magistrate must make an entry on the record to that effect, and discharge the person, or release him if he is already in custody. (S. 118)
If the person in respect of whom an order requiring security has been passed is, at the time of the order, undergoing a-sentence of imprisonment, the period for which the security is required would commence on the expiry of the sentence of imprisonment. In all other cases, the period of security would commence on the date when the order is made, unless the Magistrate fixes a later date, for sufficient reason.
Contents of the bond:
The bond to be executed by any such person should bind him to keep the peace or to be of good behaviour, as the case may be. In the latter case, the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, would be a breach of the bond. (S. 120) (Specimens of bonds have been given earlier in the Chapter.)
In England, the statute empowers Justice “to bind over the good behaviour towards the sovereign and his people all of them that be not of good fame to the intent that the people be not troubled or endangered, nor the peace diminished” (34 Edw. III, Ch.1). From the expressions, good behaviour and not of good fame, it became settled law in England that a recognisance for good behaviour would not be forfeited by barely giving fresh cause of suspicion of that which may perhaps never happen in fact. This common law interpretation of recognisance for good behaviour is narrower than the provisions of S. 120 of our Code, where the Indian Legislature has not adopted the widened meaning.
Power to reject surety:
S. 121 provides that a Magistrate may refuse to accept any surety which is offered, or may reject any surety previously accepted by him or by his predecessor, on the ground that such surety is an unfit person for the purpose of the bond. However, before refusing to accept any surety, or before rejecting any surety, the Magistrate must hold an inquiry into the fitness of the surety, or cause such an inquiry to be held by a Subordinate Magistrate.
Reasonable notice of such inquiry must be given to the surety and to the person by whom surety was offered. The evidence adduced at the inquiry must be recorded in substance. If, after considering such evidence, the Magistrate is satisfied that the surety is an unfit person for the purpose of the bond, he can make an order of refusal and record his reason for doing so.
According to the Allahabad High Court, the primary test is whether the surety can exercise proper control over the other person and mere pecuniary fitness is not the only test. (Sheikh Zikri,—8 A.L.J. 785)
However, according to the Bombay High Court, it is sufficient if the sureties are solvent and respectable; it is wrong to attach a condition to a surety that he should be able to control the accused. (Jiva Natha,—16 B. C.R. 138)
The fact that the sureties are related to the accused is not a disqualification. Rather, it is an additional qualification because a relative is more likely to keep an eye on the accused than any other person. (Shib Singh,—25 All. 131)
Similarly, a surety should not be refused on the ground that he has already stood surety for another person. (Ghisa, – 24 Cr. L.J. 517)
So also, as long as the security is ample, the Court is bound to accept the same, without inquiring into the political background of the person standing security. (Maung Tun,—27 Cr. L.J. 318)
The Allahabad High Court has also held that a proposed surety should not be considered unfit only because he was convicted of an offence in the past. (Raghunath,—26 All. 189)
Imprisonment in default of security:
S. 122 provides that if any person who is ordered to give security does not do so, on or before the due date, he is to be committed to prison, or if he is already in prison, he is to be detained in prison until such period expires or until he gives the security, whichever is earlier.
It may also be noted that imprisonment for failure to give security for keeping the peace is always simple imprisonment. However, in cases of failure to give security for good behaviour, if the proceedings are taken under S. 108, the imprisonment is simple imprisonment, but if the proceedings are taken either under S. 109 or S. 110, the imprisonment may be rigorous or simple, as the Court may direct.
Power to release persons imprisoned for failure to give security:
If the Chief Judicial Magistrate is of the opinion that any person, who is imprisoned for failure to give security under this Chapter, may be released without hazard to the community or to any other person, he may order such person to be discharged.
Such an order may be either without any condition, or upon such conditions as are acceptable to the person concerned. However, any such condition cannot operate beyond the period for which the person concerned was ordered to give security. If any condition upon which a person has been discharged is not fulfilled, the Magistrate can cancel the discharge order, and such a person can be arrested by any Police Officer without a warrant. (S. 123)
Surety for unexpired period of bond:
S. 124 provides that when a person for whose appearance a summons or warrant has been issued in a certain case under S. 123 appears, or is brought before the Magistrate or Court, the Magistrate or Court must cancel the bond, and order the person to give a fresh security (of the same description as the original security) for the unexpired period of the term of the bond.