- (1.)IN Chambers - On February 18, 1970, the prosecuting Sub INspector, Sikar, submitted a complaint under sec. 109, Cr. P. C. to the court of the Sub-Divisional Magistrate, Sikar. The complaint averred that Head Constable Hanuman Singh and Foot Constable Onar Singh spotted one person, Ramdevla Meena, who was hiding himself under suspicious circumstances behind a wooden shop near Chand pole Gate Bus Stand. On his having been questioned, he tried to run away. He was, however, apprehended with the help of one Dalu Singh Jat. On inquiry he first mentioned his name as Rawtia Chejara of Sikar. He further told the police that he was returning home after seeing a cinema show and that he sat behind the wooden shop for urinating. Subsequently it was found that that person was Ramdevla Meena. At the time of the arrest a bunch of keys was recovered from his possession. Ramdevla was arrested by the police on suspicion that there was every likelihood of the commission of a cognizable offence by him. At the fag end of the complaint it was prayed that necessary proceedings against Ramdevla under sec. !09 Cr. P. C. be taken. On receipt of the complaint, a notice was issued by the Sub Divisional Magistrate Sikar, to the non-applicant in accordance with the provisions of sec. 1 12, Cr. P. C. Ramdevla denied the charge. He stated that he was apprehended by the police from the house of Girdharilal, his cousin brother, where he was having his dinner. Girdharilal also filed an affidavit, supporting Ramdevla's plea. Girdharilal further mentioned in the affidavit that Ramdevla had never committed any theft and that he earned his livelihood through manual labour. On the basis of the denial by the non-applicant and the affidavit filed by Girdharilal, the learned Sub Divisional Magistrate, did not deem it necessary to proceed further with the case and dropped the proceedings, initiated u/s. 109 Cr. P. C.
(2.)A revision application was taken against the above order in the court of the Additional Sessions Judge, Sikar. The learned Judge observed in his order of reference that it was the duty of the Sub Divisional Magistrate to fully inquire into the matter and try the case as a summons case as laid down in sec. 117 Cr. P. C. The provisions under sec. 117, the learned Judge adds, are mandatory and, therefore, the order to drop proceedings under sec. 109, Cr. P. C. passed by the Sub Divisional Magistrate, Sikar is liable to be set aside. It is in this context that the present reference has been submitted, recommending that the impugned order of the Sub Divisional Magistrate, Sikar, dated February 18 1970, should be quashed.
A case under sec. 109 (a) Cr. P. C. starts only when the Magistrate is of opinion that there is reason to believe that the person is taking precautions with a view to commit any offence. In other words, the initiation of such a case depends upon the subjective satisfaction of the Magistrate concerned. The natural corollary of this is that if the Magistrate reaches the conclusion that there is no reasonable ground to believe that a person was taking precautions with a view to commit any offence, he is at liberty to drop the case. It is true that there is no specific provision in any of the sections of Chapter VIII of the Code of Criminal. Procedure, specifically empowering a Magistrate to drop the proceedings when once they have commenced. But it seems that such a power may legitimately be inferred. Thus, a Magistrate has power to drop proceedings initiated under sec. 109 Cr. P. C. at any stage as soon as he is convinced that there is no reasonable ground for believing that a person was taking precautions with a view to commit any offence.

In support of the above proposition, reliance is placed on an analogous case reported as Sheokaran vs. Dulla (1 ). The relevant observations are quoted below - "sec. 117, does not lay down that all the evidence that may be, sought to be produced must be recorded by the Magistrate. If, therefore, the Magistrate can come to the truth at an earlier stage, he has jurisdiction to drop the proceedings. " Similarly in Chatha Ittaman vs. State (2) it has been observed - "when on cogent grounds he (Magistrate) is satisfied that there is no likelihood of a breach of peace arising on account of all or any of the persons against whom a preliminary order under sec. 107 is drawn up there is nothing in the Code which prevents him from dropping that enquiry in whole or in part and discharge the persons concerned. " In Asghar Khan vs. State (3) Broome J. held: "a Magistrate has power to drop proceedings initiated under sec. 107, Cr. P. C. at any stage, as soon as he is satisfied that there is no danger of a breach of the peace. Initiation of a case under sec. 107 depends on the subjective satisfaction of the Magistrate concerned. If the Magistrate sees reason to change his mind and on reconsideration comes to the conclusion that there is after all no sufficient ground for proceeding, he should be at liberty to drop the case even after he has passed an order under sec. 112. Although there is no provision in secs. 107, 112 and 117 specifically empowering a Magistrate to drop the proceeding once they have been started; such power may legitimately be inferred. "

Sec. 117, which relates to the inquiry after the order under sec. 112 Cr. P. C. has been read or explained, directs that the Magistrate shall proceed to inquire into the truth of information upon which action has been taken and to take such further evidence as may be necessary. It does not lay down that the entire evidence that may be sought to be produced has got to be recorded by the court. In other words, when the Magistrate positively reaches the conclusion that the complaint under sec. 109 is frivolous, it would be fruitless to continue the inquiry under sec. 117, Cr. P. C. Of course, if the Magistrate exercises a discretion in an arbitrary manner and chooses to close the evidence of one or the other party, his order is subject to correction.

In the present case the petitioner has not cared to produce any document supporting the allegations of the non-applicant's involvement in a crime. The applicant has also failed to produce the bunch of keys alleged to have been recovered from the possession of the non-applicant. Besides, there is an affidavit on record, filed by Girdharilal, who is a responsible Government servant. This document shows that Ramdevla was taking meals with Girdharilal at about 8 p. m. , on February 12, 1970, and that he had never committed any theft in the past. In these circumstances, the learned Sub Divisional Magistrate, Sikar, was justified in dropping the proceedings under sec. 109, Cr. P. C. before recording the entire evidence. There was no illegality in the procedure adopted by him. The Magistrate could drop the proceedings under sec. 109, Cr. P. C, at any stage, as soon as he was satisfied that no reasonable grounds existed to believe that the person concerned took precautions with a view to commit a crime. The view of the learned Additional Sessions Judge, Sikar, that once a Magistrate makes an order under sec. 112, Cr. P. C. be cannot drop the proceedings, but must go on with the case in accordance with the procedure laid down in sec. 117, Cr. P. C, seems to be erroneous.

The reference is accordingly rejected. .