Ramsaran Singh and Others vs Ramakant Prasad

Rajkishore Prasad, J.—This is a reference, u/s 438 of the Code of Criminal Procedure, (hereinafter referred to as ''the Code''), by the Second Additional Sessions Judge of Patna, recommending that order No. 8 dated the 3rd June, i960, of the Sub-divisional Magistrate of Barh, should be set aside.

The material portion of the impugned order is in these terms:

3-6-60-F.P. has filed a petition. Heard the-parties lawyer.

Draw proceeding u/s 107 Criminal Procedure Code against members of the O.P. asking them to execute a bond of Rs. 1000/- with two sureties of like amount for a period of one year for maintaining good behaviour and an interim bond u/s 117 (3) Criminal Procedure Code.

The learned Judge, in his letter of reference, has discussed, both law and facts, in a very-clear and convincing manner and has given good legal reasons for quashing the said order. The reasons given by the learned Judge, for setting aside the order complained of, are: (1) that in a proceeding u/s 107 of the Code the Magistrate had no jurisdiction to call upon the second''. party to execute a bond for maintaining good behaviour;

that if an action u/s 117 (3) of the Code was contemplated to be taken by the Magistrate he should; have recorded his reasons- in-writing for taking such action; and.

that the Magistrate has acted illegally in passing a composite order u/s 112 and'' u/s 117 (3): of the Code as such an order is illegal.

No one appeared either in support of the reference or against it. On a consideration of the-reasons given by the learned Judge and the law on the subject, however, I find that the reference made by the learned Judge is well-founded and'' must be accepted.

The relevant Sections of the Code, which are necessary to be read for answering the reference are Section 107 (j), Section 113, Section 117 (3), and, Proviso (a) to Sub-section (3) of Section 117 of1. the Code. As we are here concerned only with Section 107, I will deal: with it alone, omitting Section 108, 109 or no mentioned in Section 112 of the Code.

Sub-section (t), Section 107, of the Code, as far as material, provides.

... the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner hereinafter provided, 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 such period not exceeding one year as the Magistrate thinks fit to fix.

Proviso (a) to Sub-section (3) of Section 117, which alone is relevant here, says :

(a) no person against whom proceedings are not being taken u/s 108, Section 109, or Section no, shall be directed to execute a bond for maintaining good behaviour.

It is manifest, therefore, from the plain language of Sub-section (i) of Section 107, that the Magistrate, if he decides to proceed u/s 107, can require the person concerned to show cause why he should not be ordered to execute a bond for "keeping the peace"; and, not for "maintaining good behaviour". Proviso (a) to Sub-section (3) of Section 117, further, makes the position absolutely clear by providing that no person, against whom proceedings are not being taken u/s 108, Section 109 or Section no, shall be directed to execute a bond for "maintaining good behaviour". It is plain, therefore, that in a proceeding taken u/s 107, the Magistrate has no jurisdiction to ask the person proceeded against to execute a bond for "maintaining good behaviour". He can require him to show cause why he should not be ordered to execute a bond for "keeping the -peace". The Magistrate, therefore, in the instant case, acted illegally, in contravention of Section 107 (1) and Proviso (a) to Section 117 (3), in asking the opposite part}'' before him, who were the petitioners in the Court below, to execute a bond I for "maintaining good behaviour".

Sub-section (1) of Section 107 provides that if the Magistrate wants to proceed thereunder he may proceed "in manner hereinafter provided". The-said manner, envisaged by Sub-section (1) of Section 107, is provided in Section 112.

Section 112, so far as material, provides

When a Magistrate acting u/s 107, ... deems it necessary to require any person to Show cause under such section, he shall make an order in writing, setting forth the substance of the information received ;....

Section 112, therefore, requires that when and Magistiate acting u/s 107 has decided to act ''thereunder, he shall make an order in writing, setting forth, inter ails, the substance of the information received on which the action is being, taken.

Section 113 then deals with the procedure in respect of a person, in respect of whom an order u/s 112 has been made, is present in Court.

Section 114 deals with: the procedure in respect of such person when he is not present in Court and provides that summons of warrant against such a person may be issued directing him to be brought before the Court.

Then comes Sub-section (1) of Section 117 which deals with the inquiry into the truth of the information upon which the action has been taken u/s 107 (1) and an order in writing has been passed u/s ri2 setting forth the substance of such information received. Sub-section (3) of Section 117, with which we are concerned here, then deals with emergent powers of the Magistrate pending the completion of the inquiry under Sub-section (1) of Section 117.

Sub-section (3) of Section 117, so far as necessary, provides;

Pending1 the completion of the inquiry under Sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or .... may, for reason to be recorded in writing, direct the person in respect of whom the order u/s 113 has been made to execute a bond, ... for keeping the peace or ... until the conclusion of the inquiry, ....

It is manifest, therefore, that it is-only when the person is present in Court or has been brought. before the Court that a Magistrate can take into consideration whether circumstances exist for taking immediate measures- and when he is fully satisfied that such circumstances do exist, then only he can direct the execution of an ad interim bond, but before taking recourse to Section 117 (3) he has to put his reasons in writing.

Section 117 (3) in express terms requires that, if the Magistrate contemplates to take action thereunder, he can do so for reasons to be recorded in writing", and, as such, reasons have to be recorded in writing for taking action under Sub-section (3) of Section 117 pending the conclusion of the inquiry. The Magistrate, therefore, commits illegality and acts in direct violation of the mandatory provisions of Sub-section (3) of Section 117 ii he passes an order thereunder without recording his reasons therefor.

Hence, as rightly pointed out by the learned Judge, no reasons have been given by the Magistrate for passing the order under Sub-section (3) of Section 117, and, therefore, even, assuming that he could pass a composite order both u/s 112 and Section 117 (3), the order u/s 117 (3) is illegal on this ground also.

An order u/s 112 is made at the initial stage for issuing a notice upon the person proceeded against to show cause why he should not be ordered to execute the relevant bond. Section 117 comes into play only when the rodent u/s 112 has been made, issued and the person proceeded against has been served with the said order u/s 112 and is present in Court or1 appears or is brought before the Magistrate it: compliance with or in execution of a summons 01 warrant issued u/s 114 and the Magistrate proceeds under Sub-section (1) of Section 117 to inquire into the truth of the information upon which the action has been taken and the substance of which is mentioned in the order u/s 112.

Section 117 contemplates an inquiry after an order u/s 112 has been read or explained to the person concerned; and, therefore, the order u/s 1x2 must precede any step taken Under Sections 114, 115 and 117. Sub-section (3) of Section 117 provides for a temporary order in an emergency and such an order is in the nature of an interim order. The order for interim security u/s 117 (3) is premature and illegal before the mandatory provisions of Section 112 are-complied with. An order u/s 117 (3), therefore, can be passed only on the commencement of the inquiry, which, in such a case, shall be deemed to commence as soon as the person against whom the order u/s 12 is made appears or is brought before the Magistrate and the stage is set for the Magistrate to inquiry into the matter.

It is manifestly clear, therefore, that section 112 and Section 117 postulate two different procedures, for two different ends, and, as such, a Magistrate has no jurisdiction to pass an order u/s 117 (3) along with one u/s 112. An emergency order u/s 117 (3I can only be made when the Magistrate has started to enquire into the truth of the information u/s 117 (1), and in course of that inquiry Jade considers that immediate measures are necessary. The above view is supported by a Bench decision of this Court, which has been relied upon by the learned Judge also, in Jagdish Prasad Verma and Others Vs. The State, .

It follows, therefore, that Section 113 and Section 117 deal with two different stages of the proceeding u/s 107, and, as such, a composite order both u/s 112 and Section 117 (3) cannot at all be passed.

In the instant case, the inquiry stage had not at all been reached, because only an order tinder Section 112 had been made and in pursuance of it the petitioners here had not at all appeared before the Magistrate because the order u/s 112 had not yet been issued or served. The Magistrate, therefore, could not pass a composite order u/s 112 as well as u/s 117 (3) of the Code while making an order u/s 112.

For the reasons given above and for those given by the learned Judge, I would accept the reference and quash the order of June 3, 1960, no the Sub-divisional Magistrate of Barh.