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Criminal Revision No. 139 of 1962, decided on 6th September 1963.
, Ss. 118 & 243 Mere consent or readiness of person proceeded against, to execute bond‑Not sufficient for making order demanding security---- Provisions of S. 243 not applicable.
Crown v. Sheedan 25 P R 1915 and Prem Singh v. Emperor A I R 1917 Lah. 304 ref.
, S. 112."Substance of the information"‑Means particulars indicating grounds on which information of Magistrate is based.
Muhammad Afzal Khan for Petitioners.
Sher Bahadur Khan, A. A: G. for Respondent.
Date of hearing : 20th August, 1963.
The admitted facts leading up to this revision are that on 30‑1‑63 one Khanimullah, Jemadar, District Council, Charsadda, lodged a report with S. I. Sher Taj Khan (P. W. 1), at Police Station Khanmahi, that Abdul Karim and Wazir Muhammad (petitioners) of Mufti Abad were headstrong, and were bent upon damaging Government property, and that they had recently demolished a culvert constructed by the District Council and taken away the material. On the basis of that report, the S. H. O. proceeded under section 151, Cr. P. C. and arrested the petitioners on the same day and produced them before Mr. Khadim Muhammad Khan, a Magistrate Ist Class, Charsadda. On the same date the Magistrate served the petitioner with a notice under section 112, Cr. P. C., to show cause why they be not called upon to execute bonds in a sum of Rs. 20,000 with two sureties for a period of one year. The material portion of the notice in so far as it purported to indicate the "substance of the informations" reads as follows : ‑
regarding dispute the damaging of the Council property.
On the notice a joint statement of the petitioners was taken down under which they purported to state, "I do not contest the notice and am willing to be bound down. I have no defence to produce." The learned Magistrate examined Sher Taj Khan, S. I. alone in the case, who proved the report which was lodged with him by Khanimullah, Jemadar District Council. In other words, the S. I. did not depose anything from his personal know ledge on the merits of the case and he merely proved the report lodged with him by Jemadar Khanimullah.
2. The learned Magistrate on the same date, acting under section 118, Cr. P. C., made the notice absolute. The petitioners, went up in appeal to the District Magistrate which proved in fructuous. They have now come up in revision.
3. Mr. Muhammad Afzal Khan Bangash, on behalf of the petitioners vehemently argued that mere consent or readiness of the petitioners to execute bonds in absence of any legal evidence, particularly when the allegations contained in the notice which constituted the grounds for initiating proceedings against them were not properly explained to them and admitted to be correct, could not be considered sufficient for making order demanding security.
4. The learned A: A. G., on the other hand, argued that the procedure adopted in the instant case was justified, in view of section 117, subsection (2), read with section 243. When the attention of the learned A. A. G., was drawn to the manner in which the statements of the petitioners were recorded, he agreed that it would have been better if the Magistrate had explained to them the allegations on the basis of which proceedings under section 107 were initiated, but in absence of any proof of prejudice the omission was an irregularity which was curable under section 537.
5. The important legal question raised in this revision petition may be formulated :‑
Whether the mere consent of the person proceeded against under section 107 to furnish security is a good ground to order security in absence of legal evidence
To resolve this question it will be necessary to refer to some of the provisions which are relevant to the discussion. The material sections are sections 112, 117, 118 and 243 of the Criminal Procedure Code. On a careful reading of the relevant sections and giving the arguments addressed at the Bar my close consi deration, I have formed the opinion that the judicial order demanding security under section 118 of the Cr. P. C., cannot be founded on the mere consent or readiness the person procee ded against under section 107 and that the Magistrate is bound to hold a judicial inquiry and investigate the truth of the inform ation upon which proceedings have been instituted under the chapter dealing with Security Proceedings, and give a legal finding based on legal evidence. I now proceed to give reasons in support of this view.
6. Under section 112 of the Cr. P. C., the Magistrate is under statutory duty of " setting forth the substance of the information received", when he requires any person to show cause while acting under sections 107, 108, 109 and 110. The term, substance of the information means particulars indicating the grounds on which the information of the Magistrate is based. The object oil this requirement is to make the person proceeded against clearly understand what the matter is upon which he has to show cause to afford him reasonable opportunity to be ready to meet the case against him.
7. Under section 117, subsection (1) when an order under section 112 has been read out, as in the instant case, "the Magistrate shall proceed to inquire into the truth of the informa tion upon which action leas been taken and to take such further evidence as may appear necessary." Subsection (2) of section 117 states hat the inquiry in regard to security for keeping the peace shall be made, "as nearly as may be practicable, in the matter prescribed for summons‑cases. In case it was intended that the person sought to be proceeded against under section 107 should be bound down on his mere readiness or consent then in that case one would have expected the Draftsman to have said so expressly, and in that event a proviso would have been added at the end of subsection (2) to section 117, dispensing with the inquiry "into the truth of the informa tion" in cases when the person sought to be proceeded against expressed readiness to furnish security. The proviso would have been couched in some such language as the following :‑‑‑
"Provided it would not be necessary to make such inquiry when the person sought to be proceeded against expressed his readiness to furnish security or admits the substance of the information set forth in the notice served on him under section 112."
8. As regards the argument that section 243 could be pressed into service as an analogy in proceedings under section 107, I am unable to accept the suggestion for two‑fold reasons (1) that section 243 deals with offences, while it is well‑settled proposition of law that proceedings for security does not relate to any offence and (2) that the persons sought to be bound are not accused. The provisions of section 243 could be made applicable only in regard to the admission of the person sought to be proceeded, and in that case "his admission shall be recorded as nearly as possible in the words used by him."
9. So far I have been discussing the case without referring to any authorities, though the question which awaits solution stands concluded so far as this Court is concerned and by the predecessor Chief Court. In Crown v. Sheedan (25 P R 1915) Shah Dm J., in a similar case on the recommendation by the District Magis trate that "when the respondent admits on appearing before the Court that security is required there is no need to take evidence vide section 243, Criminal Procedure Code," pointed out that the petitioner's statement before the Magistrate is not covered by analogy, by section 243, Criminal Procedure Code, and that the petitioner had not admitted that he was likely to commit a breach of the peace. I may profitably quote the lucid exposition of this very point in Prem Singh v. Emperor (A I R 1917 Lah. 304) when Johnstone, C. J., observed
"When petitioner said he was willing to give a bond, did he mean he intended to break the peace Far from it, he meant just the reverse. He obviously meant that he so little intended anything of the kind that he was ready, if asked, to execute a bond and provide respectable sureties well knowing the bond would never be enforced. None but a lunatic would say directly or indirectly to the Magistrate.
I admit I intend to break the peace. I cannot, therefore, resist the demand for security."
10. Judged in the light of the above discussion and the rule enunciated by the authorities cited above, the notice served on the petitioners under section 112, Cr. P. C., is clearly defective, in that the notice omitted to set out the "substance of the in formation received" and petitioners were never asked the specific question whether there vas likelihood of breach of the peace and, therefore, the notice is vitiated.
11. In the result, I accept the revision petition and set aside the order of the Magistrate.
K. B. A. Revision accepted.
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