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Criminal Miscellaneous No. 43/Q of 1973, decided on 30th January 1973.
--Ss. 112 & 114--Preventive proceedings‑-Magistrate issuing processes against petitioners under S. 114 without previously passing any order under S. 112‑Orders, held, illegal and invalid, and set aside in circumstances.
In re: jalprakash Lal I L R 6 All. 26; Ainuddin and ethers v. Emperor A I R 1922 Cal. 97 and Amanat Ali v. Emperor‑A I P. J929 Pat. 67 rel
Zafar Yasin for Petitioner.
Nemat Khan for Respondents.
Date of hearings: 30th January 1973.
Muhammad Ramzan, respondent No. 2, submitted an application .to the Deputy Superintendent of Police, Lodhran alleging that his wife Alit. Bakhtan had been abducted by the petitioners and they were commit ting adultery with her. It was further alleged that the petitioners were tyrant Zamindars and he had made a number of applications to the authorities but his grievance had not been redressed. On these facts he prayed that tile petitioners should be dealt with. The Assistant Sub‑Inspector, Police Station Kehrorepacca, on the 13th of January 1973, submitted report to the Assistant Commissioner (exercising powers of the Magistrate with Section 30) stating that Muhammad Ramzan respondent had made an application alleging that the petitioners had abducted his wife whom they did not return and whenever he made a demand they tried to commit a breach of peace and assaulted him. The Magistrate summoned the petitioners for 23rd of January 197:3. On 23rd of January 1973, only Ghulam Akbar appeared and he was directed to furnish a bail bond in the sum of Rs. 3,000 for his presence. He also ordered that fresh summonses should be issued for the other, accused. The petitioners moved this revision challenging the order.
2. Muhammad Ramzan respondent had not made any allegation in the complaint, which was submitted to the D. S. P., that the present petitioners had ever done anything which might have given rise to the apprehension of breach of peace. The report submitted by the Assistant Sub‑inspector, which according to its tenor, is based can the complaint, is factually incorrect. The facts alleged in the application of the complainant do not attract the provisions of section 107, Cr. P. C. In re: The Petition of Jaiprakash Lal (I L R 6 All 26) it was held that "information oaf the kind mentioned in that section must be clear and definite, directly affecting the persons against whom process is issued, and should disclose tangible facts and details, so that it may afford notice to such person of what he is to come prepared to meet." In Ainuddin and others v. Emperor (A I R. 1922 Cal: 97) the view taken in I L R 6. All. 26 was affirmed. In Amanat All v. Emperor (A I R 1920 Pat. 61) it was held: "If a proceeding under section 107 has only reproduced the language of .the section without specifying in what way and with reference to what matter a person was likely to commit a breach of the peace and in what way he was likely to do a wrongful act which might occasion a breach of the peace, it cannot be supported." The order is bad.
3. I may also observe that before the summonses were issued by the Magistrate to the petitioners under section 114 of the Criminal Procedure Code it was necessary that they should have been accompanied with a copy of the order passed by the Magistrate under section 112, Cr. P. C. It till provided in section 112, Cr. P. C. "When a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary toy require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the terns for which it is to be in force and number, character and class of sureties (if any required." The Magistrate did not pass any order under section 112, Cr. P. C. with the result that only summonses were served on the petitioner. There war non -compliance of the provisions contained in section 112, Cr. P. C. It also shows that the Magistrate had not applied his mind to the facts of the case and acted mechanically. The order of the Magistrate issuing the summonses to the petitioners is illegal and invalid and is set aside.
Revision allowed.
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