Ishwar Prasad vs Sagarmal Kejriwal and Others

Kamla Sahai, J.—This application by the first party is directed against an order of the Sub-divisional Magistrate ot Dhanbad dated the 27th September, 1963, whereby he has dropped a proceeding u/s 107 of the Code of Criminal Procedure which was drawn up earlier.

It appears that, when the first party filed an application before the Sub-divisional Magistrate for action u/s 107 against the second party, he called for a police report. The police reported that the first party''s witnesses had supported his case but witnesses of the neighbourhood, who were examined, denied to have any knowledge of the incident alleged by the first party. It was also stated in the report that the members of the second party were respectable persons, and that they were not likely to commit breaches of the peace. This report was put up before the Sub-divisional Magistrate on the 16th May, 1963. On that date, he came to the conclusion, in spite of the police report, that the matter should be thrashed out in Court. He, therefore, directed that a proceeding u/s 107 should be drawn up. No proceeding was, however, drawn up or issued until the 18th May, 1953, when the learned Magistrate passed a formal order, directing the second party to show cause why they should not be ordered to execute a bond of Rs. 1000/- each with two sureties of like amount each to keep the peace for a period of one year.

The second party showed cause, and the matter was again heard by the Sub-divisional Magistrate on the 27th September, 1963. He reconsidered all the materials which were already on the record on the 18th and 18th May, 1963, and he also made some assumptions. The ultimate conclusion which he reached was that there was no apprehension of a breach of the peace from the second party, and he, accordingly, directed the proceeding u/s 107 against them to be dropped.

Appearing on behalf of the first party petitioners, Mr. Tarini Prasad has urged that, once an order u/s 112 of the Code is drawn up, the Magistrate has no jurisdiction to drop the proceeding until he makes an inquiry as required by Section 117. He concedes that it is not necessary for the Magistrate to take, u/s 117, all the evidence that is produced before him, but he urges that the Magistrate should take some evidence. In my judgment, the legal position is somewhat different. There is no doubt that, being satisfied that a proceeding u/s 107 against the second party was necessary in this case, he drew up .an order u/s 112 on the 18th May, 1963. It has been laid down in Section 117 that,

when an order u/s 112 has bee a read or explained u/s 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 u/s 114, the Magistrate shall proceed to inquire into the truth ot the information....

This does not mean, however, that the Magistrate cannot drop the proceeding before proceeding to inquire into the truth of the information. If, at any stage, he feels that continuance of the proceeding would be fruitless, because there was no longer any apprehension of the breach of the peace at the hands of the persons proceeded against, I do not see why he cannot drop the proceeding. It will be sheer waste of the Magistrate''s time to continue with the proceeding after coming to a conclusion that it was no longer necessary to go on with it. This conclusion is supported by a decision of the Jaipur Bench of Rajasthan High Court in Sheokaran Vs. Dulla and Others, .

It must be stated, however, that an arbitrary order of the Magistrate, dropping the proceeding, cannot be maintained. Furthermore, the Magistrate cannot come to a conclusion that there was no longer any apprehension of a breach of the peace on the materials which were already on the record when the order u/s 112 was drawn up because they must be deemed to have been considered before that order was drawn up. In the present case, the Magistrate did consider the police report on the 16th and 18th May, 1963. It is on the basis of that very police report, together with some assumptions which appear to be unjustified, that the learned Magistrate has come to the conclusion that there was no longer any apprehension of a breach of the peace. It would have been perfectly legal for him to hive come to such a conclusion on fresh materials but not on material which had already been considered and on assumptions. It may be noticed that, in Sheokaran Vs. Dulla and Others, . the Magistrate dropped the proceeding on information which he gathered on the spot from the petitioner (complainant) as also the patwari.

In short, my concluded opinion is that the Magistrate can drop a proceeding even after a formal order u/s 112 has been drawn up and before an inquiry u/s 117 has been held, if he comes to the conclusion, on fresh materials being placed before him, that there is no longer any apprehension of a breach of the peace. In the instant case, the Magistrate has acted wrongly in dropping the proceeding on the old materials along with some assumptions. His order cannot, therefore be maintained.

In the result, I allow the application, and set aside the learned Magistrate''s order dated the 27th September, 1963. The proceeding, which has. been drawn up against the second party, will continue.