Find a Lawyer

Criminal Revision No. 466 of 1960, decided on 15th November, 1960.

Ss. 107, 112 & 117 Magistrate drawing up proceeding under S. 107 and directing person proceeded against to show cause under S. 112‑Cannot dispense with inquiry provided for by S. 117‑Order passed without complying with provisions of S. 117‑Illegal.

According to subsection (1) of section 117 of Criminal Procedure Code, 1898 a Magistrate is bound to enquire into the truth of the information upon which action has been taken under section 107 of the Code. The Magistrate is not competent to dispense with the enquiry as provided for by section 117 and to pass his order merely on perusing the papers and his assumption from something imaginary that there is no apprehension of the breach of the peace. This section clearly provides that a Magistrate should hold full judicial inquiry, as a proceeding under section 107 of the Code is a judicial proceeding, as soon as the opposite parties appear and show cause in response to notice issued to them under section 112 of the Code. The Magistrate must direct both parties to adduce evidence and if the parties adduce evidence he must record the same and if they do not adduce evidence then the Magistrate must decide the proceeding on the materials before him and pass the final order.

Where, the Magistrate drawing up a proceeding under section 107 of the Criminal Procedure Code, 1898 directed the person proceeded against to show cause under section 112 of the Code and upon their showing cause the Magistrate without taking any evidence and without holding any inquiry under section 117 of the Code passed the following order :

"Seen the connected papers . . . . . . . . . As far as can be seen the petitioner has selected a ready procedure to have an adjudication of possession in a Criminal Court of a matter which appears to be a civil dispute. The petition is filed as there is no apprehension of breach of the peace."

Held, that since the order passed by the Magistrate was not in compliance with the provisions of subsections (1) and (2) of section 117 of the Criminal Procedure Code, 1898 it was vitiated by illegality and as such required to be set aside.

M. A. Rab for Petitioner.

A. Wadud Miah for the Opposite‑parties.

It appears that Rajendra Mohan Das who is a petitioner before this Court was a care‑taker of the properties of one Chitta Ranjan Chakraborty, an Advocate of the Calcutta High Court and his co‑sharers. Those properties are situated in Mouja Koar and other neighbouring moujas under Hajiganj P. S. covered by some cadestral Survey plots. It is alleged that the petitioner has been managing the said properties since long before partition and has been cultivating those lands through labourers and adhi borgadars. One Rajab Ali was the borgadar of the said pro perties under the petitioner. During the last election of the Basic Democracy Rajab Ali and one Adhu Mia to whose camp the opposite parties belong contested the election from the said Ward and the opposite parties requested the petitioner for persuading Rajab Ali to withdraw from election in favour of said Adhu Mia. The petitioner, however, refused to comply with the request. So out of grudge the opposite parties and other men of their camp requested the petitioner and other Hindus of the locality not to have their lands cultivated by Rajab Ali. The petitioner, again, did not comply with the request of the opposite parties. So the opposite parties became exasperted and threatened the petitioner and other Hindus with blood‑shed and with dispossession of their lands. As there was apprehension of breach of peace, the petitioner filed an application before the Additional District Magistrate, Comilla, against the opposite parties for taking action against them under sections 144 and 107 of the Code of Criminal Procedure. The learned Additional District Magis trate, it appears, directed the Officer‑in‑charge, Habiganj to make an enquiry and report and see that the status quo was maintained and there was no breach of peace by the opposite‑parties in the meantime.

The Police after usual enquiry submitted a report and on the 5th February 1960, the learned Additional District Magistrate passed the following order :‑

"Seen police report. O./P. to show cause why they should not be bound down under section 107/117, Cr. P. C. for the maintenance of peace and restrained from going over the land under section 144, Cr. P. C. O/C. will please maintain peace in the meanwhile. To 27‑2‑60.

So by the above Order the learned Additional District Magistrate drew up a proceeding under section 107, Cr. P. C. against the opposite‑parties and directed them to show cause as to why they should not be bound down under the said section for keeping the peace. The show‑cause order was served upon the opposite -parties under section 112 of the Code. Upon the service of show‑cause order the opposite‑parties appeared on the 27^th February, 1960. Subsequently on the 4th April 1960, the opposite -parties showed cause and the case was fixed for hearing by the District Magistrate on the 13th April 1960. The case was again adjourned to 16th April 1960. On the 16th April 1960, the learned District Magistrate passed the following order :‑

"Seen the connected papers. It seems the opposite‑parties were Bargadar of the 1st party. As far as can be seen the petitioner has selected a ready procedure to have an adjudica tion of possession in a Criminal Court of a matter which appears to be a civil dispute. The petition is filed as there is no apprehension of breach of the peace at present."

As against this order of the learned District Magistrate, the petitioner has come up to this Court in revision and a Rule was issued by this Court on ground No. 1 which runs as follows :‑

"For that the learned District Magistrate seriously erred in law in passing the impugned order without taking any evidence or holding any enquiry which is mandatory in view of provisions of section 117 of the Code of Criminal Procedure and as such the said order is liable to be set aside."

Mr. M. A. Rab, who has appeared on behalf of the petitioner contends that the learned District Magistrate, committed a grave error in law by ordering the petition to be filed without holding any enquiry as provided by section 117, Cr. P. C.

Section 107, subsection (1) reads as follows :‑

"Whenever a Presidancy Magistrate, District Magistrate or Magistrate of the first class is informed that any person is likely to commit a breach of the peace or disturb the public tranquility, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate (if in his opinion there is sufficient ground for proceeding) may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix."

Section 112 of the Code runs as follows :-

"When a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under section, he shall make an order in writing, setting forth of 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."

In this case there is no dispute about the fact that the learned Magistrate took action under section 107 (1) on a police report in compliance with the provisions of the said subsection (1) of section 107 of the Code and he made a show‑cause order in writing and got it served upon the opposite‑parties in compliance with the provisions of section 112, Cr. P. C.

Subsection (1) of section 117, Cr. P. C. lays down :‑

"When an order under section 112 has been read or explained under section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under section 114, 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."

Subsection (2) of the said section lays down :‑

"Such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons‑cases ; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant‑cases, except that no charge need be framed."

Thus according to subsection (1) of section 117 a Magistrate is bound to enquire into the truth of the information and it is not competent to a Magistrate to dispense with the enquiry as provided for by this section and to pass his order merely on perusing the papers and his assumption from something imaginary that there is no apprehension of the breach of 'the peace. This section clearly provides that a Magistrate should have held full judicial enquiry as it was a judicial proceeding as soon as the opposite‑parties appeared and showed cause against the pre liminary order passed by him on the 5th February 1960. The learned Magistrate should have directed both the parties to adduce evidence and he ought to have recorded the evidence if the parties adduced evidence and if they did not adduce any evidence the learned Magistrate should have decided the proceeding on the materials before him and passed the final order. The procedure which he ought to have adopted in this case has been clearly laid down in subsection (2) of section 117, Cr. P. C., that is, an enquiry in such a proceeding for keeping the peace must be made in the same way as in a trial of a summons case. Since the impugned order passed by the Magistrate was not in compliance with the provisions of subsections (1) and (2) of section 117 it is vitiated by illegality and as such it must be set aside.

The result, therefore, is that the Rule is made absolute.

The order dated the 16th April 1960 passed by the learned Magistrate is hereby set aside and he is directed to proceed with the case in accordance with law. I may, however, point out that there has not been proper compliance of the provisions of section 112 of the Code of Criminal Procedure and it is hoped that the learned District Magistrate will strictly comply with the provisions of that section and proceed with the case in accordance with law.

K. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.