(1.) THIS is a reference by the learned Additional Sessions Judge, Udaipur recommending that the order passed by the learned Sub-divisional Magistrate, Vallabhnagar on 15-7-66 under section 117 (3), Criminal Procedure Code, directing the petitioners to execute personal bond in a sum of Rs. 500/- each and one surety in the like amount, each for keeping the peace.
(2.) THE facts giving rise to this reference are these: One Shankerlal, Kamdar of Smt. Mohan Kanwar Shekhawat of Kanore submitted an application against the petitioners in the Court of Sub-divisional Magistrate, Vallabhnagar on 15-7-1966, supported by an affidavit alleging that there was a Beed land (i. e. land used for growing grass and storing the same) situated in village Rundera bearing Khasra Nos. 2283/1 and 2283/2 which belonged to Smt. Mohan Kanwar and was in her possession. It was further alleged that there was some dispute over a part of this land between Smt. Mohan Kanwar and the petitioners which led to some litigation on revenue side before the Sub-divisional Officer, Vallabhnagar. Shankerlal further stated that on 20-3-1966 the petitioners came to the Beed land armed with various weapons such as guns, axes etc. and threatened to kill the servants of Smt. Mohan Kanwar with a view to take forcible possession of the land. It was prayed that proceedings under secs. 107 and 117 (3) of the Code of Criminal Procedure be taken against the petitioners as it was apprehended that the petitioners would create further trouble.
The learned Magistrate registered the case the same day and directed the issue of notices to the petitioners to show cause why they should not be called upon to furnish personal bonds and sureties in the sum of Rs. 500/- each to keep the peace for a period of one year. Simultaneously the learned Magistrate also directed the petitioners that since there was imminent danger of breach of peace each of the petitioners shall furnish personal bond and a surety in the sum of Rs. 500/-each for keeping the peace until the conclusion of the enquiry.
Aggrieved by the latter part of the order of the learned Magistrate whereby he had directed the petitioners to furnish personal bonds and surety under sec. 117 (3) of the Code of Criminal Procedure, the petitioners filed a revision before the learned Additional Sessions Judge, Udaipur.
After hearing the counsel for both the parties, the learned Additional Sessions Judge has recommended to this Court that the revision application should be allowed and the direction of the learned Magistrate calling upon the petitioners to furnish the personal bonds and sureties be set aside.
No appearance has been put in by either party before this Court. I have gone through the order of reference as well as the impugned order of the learned Magistrate, and I agree with the learned Sessions Judge that the order of the Magistrate calling upon the petitioners to furnish personal bonds and sureties is not legal and cannot be maintained. Sec. 112 of the Code of Criminal Procedure provides that when a Magistrate acting under sec. 107, sec. 108, sec. 109 or sec. 110 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, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required. Sec. 117 provides the procedure to be followed in the course of enquiry pursuant to the notice under sec. 112. It reads as under: - "117. (1) When an order u/s. 112 has been read or explained under sec. 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under sec. 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases. (3) Pending the completion of the inquiry under sub-sec. (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 tranquility 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 sec. 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. "
A bare reading of sub-sec. (3) would show that it is only when the order u/s. 112 has been read or explained to a person present in Court or when any person appears or is brought before a Magistrate in compliance with, or in execution of a summons or warrant issued under sec. 114, that the Magistrate shall proceed to hold an inquiry and it is only after the inquiry has been started that the Magistrate acquires jurisdiction to pass an order pending the completion of the inquiry directing the person against whom the order under sec. 112 has been made to execute a bond with or without surety for keeping the peace until the conclusion of the inquiry. Thus, in my opinion, while making an order under sec. 112 the learned Magistrate had no jurisdiction to simultaneously direct the petitioners to execute personal bonds with sureties. This, he could do, only after the petitioners had appeared or brought before him in compliance with, or in execution of a summons or warrant issued under sec. 114 of the Code of Criminal Procedure. It appears that a temporary order under sec. 117 (3) is to be made in the case of emergency and must have a direct relation to the object for which the proceedings are taken. An emergency may exist in the case of a person being proceeded against prior to his appearance before a Magistrate and to meet such emergency provision has been made in sec. 114 itself. A bare reading of the proviso to sec. 114 would show that whenever it appears to such Magistrate, upon the report of a police officer or upon other information that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest. From this it would be clear that the stage for directing the person in respect of whom the order under sec. 112 has been made to execute a bond with or without surety for keeping the peace is reached only when that person has appeared or is brought before the Court and the Magistrate has proceeded to inquire into the truth of the information lodged against him. To my mind this distinction is clear on a bare reading of secs. 112, 114, and 117, Criminal Procedure Code. I may at this stage refer to a Division Bench decision of the Allahabad High Court in Prabhakar Nath vs. District Magistrate (1) wherein it was observed that, "sec. 112 and S. 117 provide two different procedures for two different ends and, therefore, a Magistrate has no jurisdiction to pass an order under S. 117 (3) along with one under S. 112. An emergency order under S. 117 (3) can only be made when the Magistrate has started to enquire into the truth of the information under S. 117 (1) and, in the course of that enquiry he considers that immediate measures are necessary. " I am also supported in this view by two more decisions: Jagdish Prasad vs. The State (2) and In re Venkatasubha Reddy (3 ).
In the present case it is clear that no inquiry under sec. 117 (3) had been started, nor the petitioners had appeared or been brought before the Magistrate. The position, therefore, comes to this, that there was no inquiry of the nature envisaged under sec. 117 of the Code of Criminal Procedure, and in my opinion, the Magistrate was not competent to direct the petitioners to furnish personal bonds with sureties simultaneously at the time when he passed an order under sec. 112, Criminal Procedure Code, against them, I may also here refer to Bhuriya vs. The State (4) in which it was observed that the enquiry under sub-sec. (1) of sec. 117, Criminal Procedure Code, begins only after an order under sec. 112 has been read over to the person against whom a notice has been issued and an order under sec. 117 (3) in the absence of the accused is not contemplated.
In the circumstances I accept the reference and set aside that part of the order of the learned Sub-divisional Magistrate, Vallabhnagar dated 15-7-1966 whereby he had directed the petitioners to furnish personal bonds and sureties in the sum of Rs. 500/- each under sec. 117 (3 ). Criminal Procedure Code. The personal bonds and sureties, if any, furnished in persuance of this order be deemed to have been discharged. .