Decided on October 01,1901

Fyaz-Ud-Din Respondents


- (1.) This is an application by one Fyaz-ud-din, asking this Court to revise an order passed by the District Magistrate of Bijnor. That order is dated the 2nd of September, 1901. It appears that the District Magistrate of Bijnor had before him certain proceedings which had taken place in the Court of Pandit Bisheshwar Dayal, a Magistrate of the first class. Those proceedings were proceedings under Section 110 of the Criminal Procedure Code. Pandit Bisheshwar Dayal, after hearing the evidence on both sides, came to the conclusion that there were not, in his opinion, sufficient grounds, for the present at least, to bind over Fyaz-ud-din to be of good behaviour; and he accordingly discharged him under Section 119 of the Code of Criminal Procedure.
(2.) The District Magistrate of Bijnor, after looking through the record, instituted fresh proceedings after framing a fresh order under Section 112. He did not profess to make the order under Section 437 of the Criminal Procedure Code, but in the application before me it is contended that his order must have been made under that section. It is now contended that the District Magistrate cannot institute fresh proceedings in the absence of fresh information. The Learned Counsel for the applicant drew my attention to the case of Qaeen-Empress v. Iman Mondal (1898) I.L.R. 21 All. 107. In that case, according to the judgment, the order for inquiry purported to have been made under Section 437 of the Code of Criminal Procedure; so that in this respect it differed from the case with which I have now to deal. The learned Judges who decided that case have laid down that proceedings under Section 110 of the Code of Criminal Procedure cannot be regarded as on a complaint, nor can they be regarded as a case in which, an accused person has been discharged. But the important part in that judgment, so far as this case is concerned, was the filial paragraph, in which, after setting aside the order, they added--"if it be considered by the Magistrate that it is necessary to institute further proceedings, ho is competent to do so under the law on fresh information received." So far the contention of the Learned Counsel, that further proceedings under Section 110, when the first proceedings have come to an end, cannot be instituted except on fresh information received, is justified. In the present case the Magistrate of the District acted only upon the record of the previous proceedings, so that he cannot be said to have acted on fresh information so far as the present proceedings were concerned. The case above cited has been followed by this Court in the case of Queen-Empress v. Ahmad Khan Weekly Notes 1900 p. 206. Here, too, the order reported to this Court was an order purporting to have been made under Section 437 of the Code of Criminal Procedure, and it was held that that order was passed without jurisdiction.
(3.) On the other hand, this Court has held in Queen-Empress v. Mutasaddi Lal (1898) I.L.R. 21 All. 107 and again in Queen-Empress v. Ratti Weekly Notes 1899 p. 203 that proceedings of this kind are proceedings which are covered by Section 437 of the Criminal Procedure Code. So far as I am concerned, it appears to me that the words "into the case of any accused person who has been discharged," which are used in Section 437, are, with all due respect to those who have held otherwise, wide enough to cover cased falling under Chapter VIII (B). If those words do not cover proceedings under Chapter VIII(B), then I know of no provision of the law, or any principle of law, which would stand between a Magistrate instituting fresh proceedings, even if he was acting upon precisely the same facts and precisely the same information. I wish to guard myself against being understood to hold that I consider that such proceedings should be instituted lightly, or that a Magistrate should not enter upon them without very great care and caution. In the present instance the District Magistrate of Bijnor certainly looked into the case, and apparently carefully. He came to the conclusion that more convincing proof of bad livelihood of the worst description could not be adduced. He accordingly, as Magistrate of the District, instituted fresh proceedings under Section 110; and he did not purport to act under Section 437 of the Criminal Procedure Code. He evidently looks upon the record as information sufficient to justify his taking action. He took fresh evidence. I have been asked to refer the case to two Judges in order that there may be an authoritative decision upon the point. I do not, however, think it necessary to delay passing orders. Even if the District Magistrate should require security, his proceedings can, if they are proceedings hold without jurisdiction, be afterwards set aside. I do not for one moment go into the evidence one way or the other, but it is easy to conceive that a man who is a terror to the neighbourhood might work a good deal of mischief while or until this case could be decided; and up to the present, with the exception of one reported case of Queen-Empress v. Ahmad Khan so far as I know, his power to do so has never been questioned in this Court. As I have shown in Queen-Empress v. Ahmad Khan the Magistrate purported to act under Section 437. In this case the Magistrate does not profess to have so acted. I dismiss the application.;

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