JUDGMENT

Addison, J. - This is a case reported by the Sessions Judge of Delhi, one Muhammad Akbar was ordered by a Magistrate of the first class under Section 118, Criminal P.C., to give security for his good behaviour under Section 110, Criminal P.C., for a period of three years. Muhammad Akbar failed to furnish security then and there and he accordingly was ordered to be detained in prison, pending the orders of the Sessions Judgr, in accordance with the provisions of Section 123(2), Criminal P.C. A day or so later he offered security to the Magistrate who accepted it and he was released from jail. This came to the notice of the learned Sessions Judge when he was hearing the reference. The learned Sessions Judge was of opinion that the Magistrate had no jurisdiction to accept the security after making the reference to him and he had accordingly forwarded the proceedings of the Magistrate to this Court with the recommendation that the Magistrate's order accepting the security be quashed and Muhammad Akbar be ordered to be re-arrested and detained in prison, pending the orders of the Sessions Judge on the reference.

2. Sub-section (1), Section 123, Criminal P.C., directs that in cases where security is demanded up to the limit of one year and security is not given the person ordered to give security shall be committed to prison until the security is given or the period fixed expires. Sub-section (2) provides that where security for a period exceeding one year is demanded from a person the Magistrate shall, if security is not given, issue a warrant directing him to be detained in prison, pending the orders of the Sessions Judge before whom the proceedings shall be laid. Sub-section (J) lays down that the Sessions Judge after examining the proceedings may pass such orders as he thinks fit. Finally, Sub-section (4) is to the effect that if security is tendered to the officer in charge of the jail he shall forthwith refer the matter to the Court or Magistrate who made the order and shall await the orders of such Court or Magistrate.

3. The argument of the learned Government Advocate was that it follows from the fact that Sub-section (4) comes after both sub-Ss. (1) and (2) that it is left to the Magistrate who made the order to deal with the security offered in both cases when such security is tendered to the officer in charge of the jail. What corresponded to Sub-section (4) in the old Code of 1882 came at the end of what is now Sub-section (1). According to him the change effected in the later Code was a clear indication that it was intended that the Magistrate should still take security even though the matter had been referred to the Sessions Judge if such security was offered before the Sessions Judge dealt with the case. The matter is not free from difficulty and it must be said that there is nothing in the Act clearly indicating what should be done if security is offered to the Magistrate after he has referred the matter to the Sessions Judge and before the latter has hoard the reference. It must be a common occurrence that sureties are only available a day or two later. In my judgment, therefore, a reasonable view of the matter should be taken. The purpose of the security sections is not that the persons proceeded against should be sent to or kept 'in jail but that that should only be done when they are unable to give security. I do act think that it was intended that persons should remain in jail possibly for months while the Sessions Judge owing to pressure of work was unable to deal with their cases. It must have been meant that they could offer security to the Magistrate when they were able to procure it and in this way get out of jail. That implies that the reference to the Sessions Judge, if not disposed of, would automatically come to an end when security is taken In my judgment this is the most responsible, and convenient view to take, seeing that there is no specific provision of the Code dealing with this matter. At