Patna High Court
Balkishun Sao And Ors. vs Munno Khan on 24 February, 1969
Equivalent citations: AIR1970PAT107, 1969(17)BLJR479, 1970CRILJ586, AIR 1970 PATNA 107, 1969 BLJR 479 1969 PATLJR 223(2), 1969 PATLJR 223(2)
ORDER B.P. Sinha, J.
1. This application is directed against an order passed by the Sub-divisional Magistrate of Patna City on the 22nd July, 1966, drawing up a proceeding under Section 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) against the petitioners calling upon them to show cause by the 6th August, 1966, as to why they should not be ordered to execute bonds of rupees one thousand with two sureties of the like amount each for keeping peace for a period of one year. It appears that this order was passed on the basis of a police report of the Malsalami Police station that there was an apprehension of the breach of the peace due to old enmity for a piece of land, which is a graveyard.
2. Learned Counsel for the petitioners has submitted that the order of the Court below is vague and the notices served upon the petitioners did not disclose as to what was the substance of the informations which they were to answer. In this connection he has referred to Section 112 of the Code, which provides that when a Magistrate acting tinder Section 107 of the Code deems it necessary to require any person to show cause, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, etc. I think the contention of the learned counsel is well founded.
3. Under Section 107 of the Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace he may 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 a period not exceeding one year. This has to be done in the manner provided in the subsequent sections and the manner is provided in Section 112 of the Code. That section requires a Magistrate to make an order in writing setting forth the substance of the information received.
Here, in the instant case, it appears that the learned Magistrate has not given the substance of the information received in the order. He has simply passed orders in the following terms:
"Perused the police report of Malsalami P. S. and duly forwarded by D. I. Police, Patna City, for action under Section 107 Cr. P. C. Whereas, I am satisfied from the police report of Malsalami P. S. that there is a serious apprehension of breach of peace at the hands of members of O. P. due to old enmity for piece of land which is graveyard which may disturb the public peace and tranquillity in a place which lies within the local limits of my jurisdiction.
Draw up proceeding under Section 107 Cr. P. C. against the members of O. P. It is not stated in this order as to what was the substance of the report of the police and in what manner the petitioners were likely to commit breach of the peace. It is also not stated as to with regard to which graveyard there was apprehension of breach of the peace. All these things have been left vague. The notices to show cause served on the petitioners were in these very terms. Therefore, it was not clear from the contents of the notices as well as to what allegations the petitioners were to answer.
Such order which does not contain the substance of the information received has been held to be bad in a decision of the Calcutta High Court in the case of Birdhaj Roy v. State, AIR 1953 Cal 491, which has been referred to by the learned Counsel for the petitioners. It has been held therein that the order of the Magistrate not indicating the nature of the information received which induced him to take action under Section 107 of the Code is bad. No decision counter to it could be pointed out by the learned Counsel for the opposite party.
4. It has, however been submitted by the learned Counsel for the opposite party that the revision application is premature inasmuch as the petitioners have only been called upon to show cause and that stage is to come when, after the perusal of the show cause the Magistrate would take a decision whether to proceed with the proceeding or not. In this connection, learned Counsel for the opposite party has relied upon a decision of this Court in Criminal Rev. No. 351 of 1954 (Pat) Zahuruddin v. State, decided on the 18th November, 1954. In that case also a proceeding was started under Section 107 of the Code and the petitioners were called upon to show cause as to why they should not be ordered to execute a bond. It was observed that it would be premature for this Court to say whether the allegations did or did not warrant a proceeding under Section 107 of the Code, the learned Magistrate having complete jurisdiction to issue notices under that section.
5. In answer to this, learned Counsel for the petitioners has referred to an earlier decision of this Court in the case of Amanat Ali v. Emperor AIR 1929 Pat 67. In that case also against the very initial order drawing up a proceeding under Section 107 of the Code and calling upon the other side to show cause, a revision was filed and that was allowed on the ground that specifications as required under the law were not indicated in the order, that is to say, the petition in revision was entertained against the initial order calling upon the other side to show cause. This decision is counter to the aforesaid decision in the case of Zahurruddin, Criminal Revn. No. 351 of 1954 D/- 18-11-1954 (Pat), referred to by learned Counsel for the opposite party, in which the revision was characterised as premature at that stage. The decision in the case of Amanat A1S AIR 1929 Pat 67 was not referred to in that decision, which has been relied upon by the learned Counsel for the opposite party. The decision in the case of Amanat Ali being an earlier decision and having not been overruled by a Bench decision of this Court has to be followed. Therefore, I hold that the present revision application is not premature.
6. Another contention of the learned Counsel for the petitioners has been that the petitioners were called upon to show cause why they should not execute a bond for keeping peace for a period of one year and this period must be taken to have begun from the date of the order, that is to say, from the 22nd July, 1966, and, since that period has already elapsed, the order is fit to be set aside now. In this connection he has relied upon a decision of the Allahabad High Court in the case of Baburam v. Rex, AIR 1949 All 21. In that case the initial order requiring the parties concerned to furnish security for a period of three months commenced from the 18th August, 1947, when it was observed that that period having already expired, if the learned Magistrate was to hear the case upon merits under Section 117 of the Code, he would not be in a position to pass a final order in confirmation of the previous order and he would have to drop the proceeding. With such observations, the proceeding was quashed.
It would, however, appear that in that particular case, the period of three months was directed to commence from a particular date. That is not the case in the case under consideration. Further, if such be the intention of law, then in every case, by coming in revision and dealing the matter, the person proceeded against would evade the execution of the bond. Learned Counsel has not been able to cite any decision of this Court on this point. With respect, I am not inclined to agree with the decision referred to above.
7. In view of what has been said above, the application is allowed and the order of the learned Magistrate dated the 22nd July, 1966, is set aside on the ground that it is vague. I would, however, like to make it clear that it is always open to the learned Magistrate to take appropriate action in a legal way if any such occasion arises.