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Criminal Reference No. 22 of 1954, decided on 14th July, 1954 under section 438 of the Cr. P. C.

S. 119-Applicant absent-Order of discharge may be passed by Magistrate-Order of Magistrate demanding security, from applicant for appearance is ultra vires.

There is no provision in the Code of Criminal Procedure or in any other law which requires that a complainant must produce security for his or her attendance ; nor can any Court direct that a complainant shall produce security.

In security proceedings under section 107 Criminal P. C. if the applicant is absent on the date fixed for hearing, the correct course for a Magistrate to adopt is to pass an order of discharge under section 119, Criminal P. E. It is undoubtedly true that the order of the Magistrate directing the applicant herself to furnish security is ultra vires and must be set aside.

-This reference has been made by the Sessions Judge in Baluchistan under the provisions of section 438, Criminal P. C. and concerns a certain order passed by the Magistrate First Class at Mach.

The facts of the case indicate hat a complaint was filed by one Qalandar Khan---the father of the petitioner Mst. Zaitoon-against Samundar Khan who is the husband of the petitioner under section 107, Criminal P: C. A notice was issued by the Magistrate under section 112, Criminal P. C. to Samundar Khan and it also appears that some verbal order was made by the Magistrate asking Mst. Zaitoon to produce security for her attendance during the pendency of the proceedings. No written order to this effect appears on the file. In obedience to the verbal order Mst. Zaitoon furnished security but on the 27th April, 1954, she failed to appear and notice was issued to her surety to show cause why his security should not be forfeited.

The records of the case indicate that Mst. Zaitoon herself is the complainant in the present case and there is no provision in the Code of Criminal Procedure or in any other law which requires that a complainant must produce security for his or her attendance; nor can any Court direct that a complainant shall produce security.

In such security proceedings if the complainant is absent on the date fixed for hearing, the correct course for a Magis trate to adopt is to pass an order of discharge under section 119, Criminal P. C. It is undoubtedly true that the order of the Magistrate directing the complainant herself to furnish security is ultra vires and must be set aside. I accord ingly accept the reference and direct that the order passed by the Magistrate will be set aside.

K. M. A. Reference accepted.

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