In Re: Kalia Goundan and Others

Krishnan Pandalai, J.—This is a petition to revise an order under sec tion 118 of the Criminal Procedure Code made by the Joint Magistrate

of Dindigul requiring the petitioners twelve in num ber to furnish security for keeping the peace for one year. The order was on appeal confirmed

by the learned Sessions Judge of Madura.

Two objections are taken to the order complained against: (1) that the Joint Magistrate of Dindigul had no jurisdiction to make it, and (2) that

the preliminary order u/s 112 in which the proceedings were initiated was defective in that it did not contain the substance of the information

received;

To understand the first objection the facts necessary are that the petitioners and \he place where the alleged breach of the peace was

apprehended are within the jurisdiction of the Sub-Divisional Magistrate of Usilampatti. The proceedings against the petitioners and others u/s 107

were in stituted before that Magistrate, and he on the 29th of Decem ber, 1928, made the preliminary order u/s 112 calling upon the petitioners

and others complained against to show cause. The District Magistrate then transferred the case to the Joint Magistrate of Dindigul. The latter

Magistrate for some reason drew up another preliminary order u/s 112 making formal changes in the order passed by the Usilam patti Magistrate

but substantially in the same terms as that order. The petitioners showed cause, one of their objections being that the order u/s 112 was not definite

enough as it did not contain any particulars. The Magistrate brushed this aside as a technical objection and stated that in his opinion the order does

give particulars of the dispute and the reasons for apprehending a breach of the peace, and he added that the further details appeared as the

prosecu tion unfolded its case. To return to the objection as to the jurisdiction, it is argued that the Joint Magistrate of Dindigul had no jurisdiction

to proceed with the enquiry against the petitioners because neither were the petitioners living within the jurisdiction of that Magistrate nor was the

place where breach of the peace was apprehended within his jurisdiction. It is contended that according to Section 107 Magistrates other than a

Chief Presidency Magistrate or District Magistrate are not only incompetent to initiate proceedings against persons residing beyond their

jurisdiction in respect of breach of the peace beyond such jurisdiction, but they are also incompetent to hear cases u/s 107 transferred to them by

the Dis trict Magistrate where the persons and the places affected are not in their jurisdiction. For this contention no direct authority was

forthcoming. But the decision in Konda Reddy v. King-Emperor ILR (1917) M. 246. was referred to. That case is not on all fours with this. There

the Magistrate before whom the proceedings u/s 107 were initiated had not passed the preliminary order when the District Magistrate transferred

the case to another Magistrate, and it was held that there having been not even an initiation or commencement of proceedings u/s 107 before the

Magistrate competent according to the terms of that section, the order of transfer did not confer jurisdiction on the Magistrate to whom it was

transferred and that therefore the proceedings before him were incompetent. That case did not decide, because the facts were not so, that where a

Magistrate having jurisdiction according to Section 107 has made an order u/s 112, the District Magistrate is not empowered to transfer the case

so initiated to another Magis trate competent according to his grade or class to try this class of cases, although not qualified by the requirements of

Section 107 as regards territorial jurisdiction. On that limited pro position there appears to be no decision of this Court. But the point is covered by

an authority, namely, Surjya Kanta Roy Chowdliry v. Enttperor ILR (1904) C. 350 which was referred to in Konda Reddy v. King-Emperor ILR

(1917) M. 246. with approbation. In the Calcutta case the precise point arose and it was decided in 1904 ""that the intention of the legislature was

to limit the jurisdiction in regard to the institution of proceedings to a Chief Presidency or District Magistrate; but that when such Magistrate has, in

the exercise of his discretion, directed institution of proceedings, there is nothing in the law to prevent him from transferring the case to a Magistrate

otherwise qualified to complete the proceedings."" This decision has stood the test of subsequent amendments of Section 107 and there is nothing in

the amendment of 1923 to show that this view was not accepted as correct or that the legis lature intended to alter it in any way. The result is that

the Usilampatti Magistrate having first drawn up the preliminary order u/s 112 the subsequent transfer of the case to the Dindigul Magistrate by the

District Magistrate was autho rised and the proceedings before the Dindigul Magistrate were competent. The first objection therefore fails.

The second objection relates to the defect in the order u/s 112 and the objection is that that order does not, as it is required by Section 112 of

the Code to do, set forth ""the substance of the information received."" Upon the deci sions on this topic there is no reasonable doubt as to what the

intention of these words is. It is to give in substance an abstract of the facts upon which the Magistrate charges the persons proceeded against with

being likely to commit a breach of the peace so as to give them notice of what they have to meet and be prepared to meet it. There are many

instances of the practical application of this general rule, of which a very good one is found in Kutti Goundan, In Re: Kutti Goundan and Another, .

The general rule being as stated the question is whether in this particular case the order satisfies the requirements. Other decisions cannot be of

much help on that point. The order upon which the Dindigul Magistrate proceeded was one drawn up by himself on 4th April, 1929, after the case

was transferred to him. In one sense this was not the order on which he ought to have pro ceeded because the proceedings having been already

initiated he could not initiate them over again and the order which he should have started upon was the order passed by the Usilampatti Magistrate

on the 29th December, 1928. If there had been any material difference between the two orders that might alone have been a sufficient irregularity

to invalidate all that followed. But as it happens, the order drawn up by the Dindigul Magis trate is, apart from formal changes necessitated by the

change of venue, substantially the same as the order passed by the Usi lampatti Magistrate, and, therefore, no more need be said about it. The new

order drawn up was merely superfluous. The substance of both orders is this:

That you... formed yourselves into a faction espous ing the cause of counter-petitioner 1 against Kamatchi Goundan of the same village in regard to

the possession and enjoyment of a tamarind tope situated in S. No. 139J of Odaipatti village and by the inimical attitude of yours against the said

Kamatchi Goundan''s faction, you are likely to commit breaches of the peace or disturb the public tranquillity or do wrong ful acts that may

probably occasion breaches of the peace or disturb the public tranquillity.

It will be noticed that no other fact is mentioned here except that there are two factions in the village and a dispute between them about a

tamarind tope and that the counter-peti tioners are on one side. It gives absolutely no indication as to what the information was upon which the

counter-petitioners were believed to be threatening breaches of the: peace. It would have left the counter-petitioners just as well informed on that

point as if they were told: ""You are wicked men. You have got enemies and therefore you are likely to commit breaches of the peace."" In my

opinion not only was there no attempt to state in substance the information received against the counter-ipetitioners but the order contained nothing

from which they could know the case that they would have to meet. The order therefore was clearly defective. This was not, as the Dindigul

Magistrate thought, a merely technical defect that it did not give the particulars or the reasons for apprehending a breach of the peace. On that

ground the order is liable to be set aside.

But it has been argued for the Public Prosecutor that this defect does not vitiate the proceedings because it did not occa sion a failure of justice.

I do not question, at any rate I do not now want to question, whether a defect of this character is curable. But the question whether failure of

justice has been occasioned in every case is one of fact. In this case the objec tion was taken before the Magistrate himself, and that, accord ing to

Section 537, is always a circumstance from which failure of justice may be inferred. Whether it was in fact occasioned in this case cannot be

disputed because the counter-petitioners did not have the information they were entitled to possess in the early stage of the proceedings and if they

had pos sessed it at that time, they might have met it suc cessfully. The order, therefore, must he set aside and the bonds given by the petitioners

will be cancelled. I come with all ""the more confidence to this conclusion because this order passed in May, 1929, will in any case expire in two

months more.