Vol. 12 · pages 466–470

445THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA In these cases the bond may be for a year. 1. Concealing must be with a view to commit an offence. 2. Ostensible means of subsistence. To be penniless or out of work is not to be without ostensible means of subsistence. 53 Cal. 347 Victor vis Emp. Section 110 deals with the following cases of habitual offenders. (1) is by habit a robber, house-breaker, thief or forger or (2) is by habit a receiver of stolen property knowing the same to have been stolen or (3) habitually protects or harbours thieves or aids in the concealments or disposal of stolen property or (4) ........ In the case of habitual offenders the bond may be for 3 years. Section 121 The method adopted to compel such persons to keep peace or be of good behaviour is to demand from them security to keep peace or behave for a certain period. Difference between a bond for keeping peace and bond for keeping good behaviour 1. A bond for keeping the peace will not be forfeited by the commission of any offence ; but only by the commission of offences likely in their consequences to cause a breach of peace. 2. A bond for good behaviour will be forfeited by the commission of any offence punishable with imprisonment. Procedure on breach of bond. When a person forfeits a bond by being convicted of an offence, the amount of the forfeited bond may be recovered, but he cannot be forthwith imprisoned for the unexpired portion of the term of security. The Magistrate’s remedy is to take fresh proceedings under this chapter. Magistrate is not justified in forfeiting a recognizance without giving the party charged with breach an opportunity to cross examine the witnesses upon whose evidence the rule to show cause has been issued.

446 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The security may be a personal security with or without sureties. The Magistrate has a right to define the class of sureties e.g. landholders, etc. Section 122 A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor on the ground that such surety is an unfit person for the purposes of the bond. There is to be inquiry into fitness. Test of fitness is whether the surety can exercise proper control over the person who has been bound over. Mere pecuniary fitness is not the only test of his fitness. The object of requiring security is not to obtain money for the Crown by the forefeiture of recognisances, but to ensure that the accused should be of good behaviour. Surety unfit if he were staying away. According to the Bombay High Court it is sufficient if they are solvent and respectable. 22 Bombay L.R. 190. Ability to control the accused is not a desirable condition. Section 126 A surety may apply at any time for cancellation of his bond. Liability of surety Surety’s liability arises on the breach of the bond which again depends upon the conviction of the principal. Good behaviour and peace are general terms and include many offences. That being so, it would be unjust to hold that the surety is liable for every conceivable offence committed by the principal. They indicate liability for such good conduct as indicated by the circumstances under which security was demanded. Procedure Section 112 When a Magistrate deems it necessary to require any person to show cause under such section, he shall make an order in writing

447THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA setting forth the substance of the information received; the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required. Section 113 If the person is present in Court it shall be read over to him, or if he so desires the substance thereof shall be explained to him. Section 114 If he is not present a summons shall issue. If immediate breach of peace is feared warrant may issue. Section 115 Copy of the order shall accompany the summons. Section 116 Power to dispense with personal attendance. Section 117 Inquiry as to the truth of the Information When the person is present the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. If action is taken under Section 107 the procedure shall be of a summons case. If action is taken under Sections 108, 109, 110 it shall be as in warrant case except that no charge need be framed. Pending inquiry, the Magistrate may, if he considers that immediate action is necessary for reasons to be recorded in writing, direct the person to execute a bond to behave until the conclusion of the inquiry. Section 118 If upon such inquiry it is proved that bond is necessary, the Magistrate shall make an order accordingly. Provided: 1. That the order shall not be different from that served upon the person 2. The amount of each bond shall not be excessive 3. If the person is a minor the bond shall be executed by his sureties only.

448 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Section 119 If it is not proved that it is necessary for keeping peace or good behaviour, the Magistrate shall release him if he is in custody or discharge him after making an entry to that effect. Is the person proceeded against an accused person ? There is a difference of view on this question. In some cases it has been held that he is an accused person. In other cases it has been held that he is not an accused person. Bombay L.R. 27. The sections itself are clear. The deliberate use of such expressions the person, such persons, etc. and studiously avoiding the use of the word accused, the person informed against, the person called upon to show cause. That being so, oath can be administered to him and examined and X-examined. Section 120 The period of security shall commence on the expiration of sentence if one was being undergone at the time. In other cases, it shall commence on the date of the order unless the Magistrate for sufficient reason fixes a later date. Section 123 On failure to give security, he shall, if he is already in prison, be detained in prison, until such period expires or until within such period he gives the security to the Court or Magistrate who made the order. 2. When the period of security exceeds one year and there is a failure to give security, the Magistrate shall order to detain him in prison pending the orders of the Sessions Judge or High Court to whom the case is to be submitted. The Sessions Judge or High Court may pass any order except imprisonment exceeding 3 years. 3. When the case of one is referred, the cases of others jointly tried is also referred. But me period of theirs shall not be increased.

449THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA Imprisonment Simple for failure to give security for keeping peace. Simple for good behaviour under Sections 108 and 109 and rigorous ............. under section 110. Section 124 1. D. M. or Chief Presidency Magistrate may order any person failing to give security if he is of opinion that he may be released without hazard to the community or to any other person. 2. D. M. or Chief Presidency Magistrate may reduce the amount of security or the number of sureties or the time for which security has been required. 3. The release of a person may be conditional or unconditional. The condition shall cease when the period expires. The order of discharge may be cancelled if the condition is not fulfilled. When conditional order of discharge is cancelled, such person may be arrested by any police officer without warrant and shall be produced before the D. M. or Chief Presidency Magistrate. Unless then he gives security in accordance with the terms of the original order, the D. M. or Chief Presidency Magistrate may remand such person to prison to undergo such unexpired portion. He may be released if gives security thereafter in terms of the original order. Proceedings dealing with the enforcement of certain obligations (Page left blank) Section 9 of the Fugitive Offenders Act, 1881 Mentions offences in which a fugitive offender from one dominion may be surrendered. Section 19(d) of the Indian Extradition Act Also mentions the offences in which an offender from a dominion may be surrendered. Dealing in territorial jurisdiction Instead of extraditing him, can he be tried in British India for the offence committed outside British India ?