Wahari Mander and others vs King Emperor

Bucknill, J.—This was an applica - made to this Court on behalf of four persons Wahari Mander, Ramlochan Mander, Saukhi Mander and Kamal Das asking that they should be released on bail. It is indeed somewhat difficult to understand why or how they ever found themselves in gaol. But it would appear that the Sub Divisional Officer of Monghyr initiated. proceedings u/s 107 of the Criminal Procedure Code against the petitioners and, at the same time, issued notice against them u/s 144 of the Criminal Procedure Code. Further, on the 16th March, the opposite party, that is the first party, made an application to this officer that the petitioners should be put in gaol as they, the complainant first party, were in apprehension of personal injury or danger. On this, the Magistrate issued warrants against these men on the 4th April and, on that date, apparently, the Sub-Divisional Magistrate sent them to Hajat purporting presumably, to act under Sub-Section (3) of Section 107 of the Criminal Procedure Code. It may be also pointed out that the warrants which were issued against these men by the Magistrate were bailable warrants. Now, the applicants made an application to be released on bail to the Sub-Divisional Officer but he refused the application; and what to my mind, is somewhat more serious, is that an application was then made to the Sessions Judge, who, after pointing out that the accused were in Hajat u/s 107 Sub-section (4) of the Criminal Procedure Code, declined to grant bail to the applicants. Now, I think it is desirable to point out that it would certainly appear that where proceedings have been instituted against a person u/s 107 of the Criminal Procedure Code, it is only in the special circumstances referred to in Sub-Sections (3) and (4) of that Section that the law empowers a Magistrate to detain a person in custody until the completion of the enquiry. The point is that the Sub-section can only be put into operation when a Magistrate, who has no powers to proceed under Sub-section (1) of Section 107 is led to believe that a person is likely to commit a breach of the peace or to disturb the public tranquility or to do any wrongful act which might possibly occasion a breach of the peace or disturbance and cannot, by any other means, prevent the possibility of such an occurrence, that he with his limited powers can arrest such a person and he must send him then to another Magistrate who has got adequate powers for dealing with the case. The case of Raghunandan Pershad and Others Vs. The Emperor appears to lay this matter down very clearly. See also Chidambaram Pillai v. Emperor [1908] 31 Mad. 315: 3 M.L.T. 311: Cr.L.J. 360 where it was expressly held that a Magistrate has no jurisdiction to remand a person in custody u/s 107 Sub-Section (4) of the Criminal Procedure Code when such person is not sent to him by another Magistrate u/s 107(3). Now, I find that it is said in the letter of explanation which was given by the District Magistrate (as a result of the rule issued by this Court on the 9th April 1923) and which I may add is dated the 16th April last that "Wahari Mander and others in the marginally noted case" were granted bail of Rs. 300 each on the 14th April as a result of a police report from which it appears that there was no further immediate danger of a breach of the peace. If it is quite clear that the four applicants here have been thus admitted to bail there is nothing further to be done, but if there has been any mistake and these particular four petitioners are not those who have been so admitted to bail then they must be admitted to bail forthwith to the satisfaction of the District Magistrate.