Jangir Singh and Another vs The State

(1) The Sessions Judge, Barnala, has sent up this revision to this Court with a recommendation that the proceedings taken by the Sub-Divisional Magistrate, Barnala in regard to an enquiry pending under S. 107, Criminal Procedure Code, should be quashed.

(2) The facts of this case are that the Deputy Superintendent of Police, Barnala, presented a report on 16-2-1959 to the Magistrate to the effect that six persons named in the report were disturbing public tranquillity and were taking the law into their own hands and that the public apprehended imminent danger of a breach of the peace at the instance of these person. It was submitted that if these persons were not immediately bound over in the sum of Rs. 25,000/- each for a period of one year, there would be danger of a breach of the public peace and that they should, therefore, be put on interim security under S. 117 (3), Criminal Procedure Code. It was also prayed that non-bailable warrants of arrest in respect of offences under Ss. 151/107, Criminal Procedure Code, be issued. It was stated that these person were instigating members of the public to commit breach of the peace by agitating against the increasing prices of food-grains and betterment levy.

(3) On receiving this report the Sub-Divisional Magistrate passed the following order:

"Presented by the Deputy Superintendent of Police. It may be registered. Issue non-bailable warrant. To come up on 20-2-1959.

Sd./- S. D. M. Barnala".

In pursuance of the above order of the Sub-Divisional Magistrate, non-bailable warrants of arrest were issued against the six persons two of whom Jangir Singh alias Jagtar Singh and Arjan Singh were arrested on 17-2-1959. Jagtar Singh was produced before the Sub-Divisional Magistrate on 17-2-1959, and when rendered into English, the order ran as under:

"In the office of the S. D. M., Barnala:

A. S. I., Balwant Rai has produced Jagtar Singh respondent after arresting him. The case to come up for proper proceedings on the date fixed ;

If Jagtar Singh respondent furnishes a surety in the sum of Rs. 10,000/- and a personal recognizance bound in the like amount for his appearance in Court and also a surety in the sum of Rs. 15,000/- together with personal bond in the like amount under S. 117 (3), Criminal Procedure Code, then he be released. In case he does not furnish the requirement sureties and bonds, he be admitted to the judicial lock-up, Barnala, Dated 17-2-1959.

Sd/- S. D. M., Barnala".

Similar order was passed on 18-2-1959 in respect of Arjan Singh when he was produced before the Magistrate. The two petitioners feeling aggrieved Judge who has made the above recommendation * for the setting aside of the above order.

(4) In this case the Sub-Divisional Magistrate has not complied with the relevant provisions of Chapter VII of the Criminal Procedure Code. It appears that the Sub-Divisional Magistrate completely overlooked the provisions of S. 112, Criminal Procedure Code. On getting information of the kinds specified in S. 107 S. 108, S. 109 or S.110. and if the Magistrate is of opinion that there is sufficient ground for proceeding, the first step he is to take, is to pass an order in writing under this provision against the person concerned.

The order under S. 112 should set forth (1) the substance of the information received by the Magistrate on which he has decided to Act; (2) the amount of the bond to be executed; (3) the terms for which such bond is to be in force; and (4) the number, Character and class of sureties, if any, required. Not only the provisions of S. 112 were not strictly complied with; in fact, there had been no compliance at all with S. 112. It appears that S. 112 was not even present to the mind of the Sub-Divisional Magistrate when he passed orders in this case.

(5) Section 113 provides procedure in respect of the person in Court when an order under S.112 is being passed and S. 114 relates to persons who are not present in the Court at that time. Under S. 114 summons or the warrant, as the case may be, are issued for the appearance or production of the person concerned. The proviso empowers the Magistrate in case of an emergency where there are reasons to fear the Commission of a breach of the peace, to issue a warrant in the first instance for the arrest of such a person.

Section 115 of the Code requires that every summons or warrant issued under S. 114 shall be accompanied by a copy of the order made under S. 112 and such copy shall be delivered by the officer serving or executing such summons or warrant to persons served with, or arrested under the same. Section 117 of the Code contemplates an enquiry as to the truth of the information after an order under S. 112 has been read or explained to such a person, Sub-section (3) of S. 117 of the Code runs as under:

"117 (3). Pending the completion of the inquiry under sub-s. (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may for reasons to be recorded in writing, direct the person in respect of whom the order under S. 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or in default of execution, until the inquiry is concluded:

Provided that:

(a) no person against whom proceedings are not being taken under S. 108, S. 109, or S. 110 shall be directed to execute a bond for maintaining good behaviour, and

(b) the conditions of such bond, whether as to the amount thereof as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under S. 112".

This provision empowers the Magistrate to directs the person against whom an order under S. 112 has been made to execute a bond for keeping the peace or maintaining good behaviour during the interim period while an inquiry is proceeding. Sub-section (3) requires that the Magistrate should weigh in his mind whether immediate measures are necessary for the purpose of prevention of the breach of the peace etc. and on being so satisfied he may "direct the person in respect of whom the order under S. 112 has been made to execute a bond, with or without sureties for keeping the peace or maintaining good behaviour" until the conclusion of the inquiry.

(6) The language of the Code leaves no room for any doubt that the order under S. 112 must precede any step taken under Ss. 114, 115 and 117. In this case the order u/s 117 (3) has been passed prematurely and therefore, illegally. The mandatory conditions which were precedent to the passing of the order have been completely overlooked. In matters involving the liberty of the citizens the omissions of the nature as have been committed in this case cannot be brushed aside on the ground that no prejudice has been caused to the petitioner in consequence of such a non-compliance. In this view I am supported by a catena of authorities of several High Courts. Reference, among others, may be made to Tejsingh Man Singh v. State AIR 1954 Madh B 39; Jaswantsingh v. Ranchod AIR 1954 Madh B 192 ; Ramlal Vs. The State, Hurmat Vs. The State,

(7) For reasons stated above, I set aside the order of the Sub-Divisional Magistrate passed on 17-2-1959 in respect of Arjan Singh petitioner. If the Magistrate was of the opinion that the circumstances of this case justified the taking of measures under S. 117 (3), it was incumbent upon him to comply with the provisions of S. 112. It is only after the passing of an order under S. 112 that any further proceedings in the matter can be taken. In the result all proceedings taken by the trial Court subsequent to the receipt of the information from the police are quashed.

(8) Order accordingly.