MYSORE HIGH COURT

                                                  Rame Gowda

                                                         Vs

                                                 State of Mysore

                                   Criminal Revn. Petn. No. 123 of 1959

                                            (N. Sreenivasa Rau, J.)

                                                   09.09.1959

                                                  JUDGMENT

N. Sreenivasa Rau, J.

1. This is a revision petition against the order of the Ex-Officio First Class Magistrate, Hassan
Sub Division, Hassan, directing the petitioners against whom proceedings had been instituted
under Section 107 of the Code of Criminal Procedure to execute interim security bonds under
Section 117 (3). It is urged that the order complained of was made without complying with the
provisions of Section 113 of the Code of Criminal Procedure and without giving an opportunity
to the petitioners to cross examine the Investigating Officer who had made an application for
action under Section 117 (3), and that, in any event, the learned Magistrate should have re-
considered the order when the above infirmities had been pointed out to him.

2. It is seen that the preliminary order under Section 112 was made on 29-10-1957 and that on
26-11-1957 the Sub-Inspector applied for obtaining interim bonds from the Petitioners under
Section 117 and an order was made accordingly, even though before the making of the order one
of the counsel appearing for the petitioners urged that orders may be passed after verifying the
allegations made in the complainant's application. Later, the senior counsel appeared and moved
for the setting aside of the order by a written application reinforced by arguments. It was urged
that the order was illegal as some of the accused were absent and therefore no steps could be
taken in the case. It was also urged that such an order had to be passed after hearing the case of
all the accused and after explaining the charge to the accused under Section 113 of the Code of
Criminal Procedure. It was also requested that the accused be permitted to cross examine the
Sub-Inspector who had moved for action under Section 117 (3). On this the case was posted to
11-12-1957 to consider these matters. Meanwhile, the order seems to have been kept in
abeyance. On 3-2-1959 the order complained against was passed overruling the objections raised
on behalf of the accused. The main ground for the decision appears to be that an order once made
could not be reviewed, particularly when the previous order had been made by the predecessor in
office of the learned Magistrate who passed the order in question.

3. The main contention urged on behalf of the petitioners is that the reading over of an order
under Section 112 and explaining the substance of it is a necessary condition precedent to
making an order under Section 117 (3) of the Code of Criminal Procedure. The sequence of the
sections from 113 to 117 and of the sub-sections in Section 117 itself appears to justify this
contention. It also stands to reason that before a serious step like an order for directing the
accused to execute interim bonds is taken, they should be apprised by the Court of the terms of
the order made against them under Section 112. It has been held that the failure on the part of the
Magistrate to read out the order under Section 112 or to explain its substance to the accused
vitiates an order made under Section 117 (3) of the Code of Criminal Procedure and such an
omission is not a mere irregularity and goes to the root of the proceedings. In the case on hand,
the entry in the order sheet on 26-11-1957 does not at all make it clear that the order under
Section 112 was read out to the accused or that the accused were asked whether they wanted it to
be explained as required by Section 113. On the other hand, it would appear that it was not so
read out or explained when on that very day the accused, in their application, stated that it had
not been read out or explained and nothing was mentioned about it by the learned Magistrate in
the further entry in the order-sheet on that day. It seems to me, in these circumstances, that the
order under Section 117 (3) cannot be sustained. It is accordingly set aside with the direction that
the learned Magistrate will consider the complainant's application for action under Section 117
(3) afresh and dispose it of according to law.

4. It may be mentioned that the proceedings were instituted as long ago as 25-9-1957 and they
have not terminated even though almost two years have elapsed since then. This is hardly
calculated to fulfill the object of the preventive provisions of the Code of Criminal Procedure.
The learned Magistrate will, therefore, dispose of the case as expeditiously as possible consistent
with giving reasonable opportunities to both the sides.

Order accordingly.