Jagoish Sahai, J. - (1.) The petitioner Zahir Ahmad has come to this Court under Article 226 of the Constitution of India and has prayed for the issue of a "Writ of habeas corpus or an order in the nature of habeas corpus to the respondents" to set the petitioner at liberty without any delay. The facts giving rise to this petition in short are as follows:
(2.) On the 7th of October, 1961, Sub-Inspector Permanand Dube, Station Officer police station Kotwali, Ballia made a report to the S. D. M., Ballia for taking proceedings under section 107 of the Code of Criminal Procedure against the petitioner and eleven others. It appears that the case was transferred to the court of Sri Ganga Prasad, Additional S. D. M., Ballia for trial. It is the common case of the parties that Sri Ganga Prasad did not 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 was to be in force, and the number, character and class of sureties required as provided for in Section 112, Cri. P. C. What he did was that he issued notices along with warrants of arrest on 16-10-1961 to the petitioner and others who were being proceeded against along with him. The notice purporting to be under section 112 of the Code of Criminal Procedure reads as follows: "Notice under section 107/112, Cri. P. C. Whereas I, Ganga Prasad, Magistrate, 1st Class, Ballia have received information from S. O. Kotwali, Ballia vide his report dated 7-10-61 that you Sri Zahir Ahmad, s/o Mukhtar Ahmad, village Amdari police station Kotwali Ballia are likely to commit breach of peace on account of bad relation with Sri Ram Badai Bhar and others in connection with dispute over litigation which is within the local limits of my jurisdiction and whereas I am satisfied from the said report that there does exist an apprehension of the breach of peace from you people named above. I, therefore, call upon each of you to show cause as to why you should not be ordered to execute a oersonal bond of Rs. 500/- with two reliable sureties each in the like amount to keep peace for a period of one year. Dated : Sd, Ganga Prasad, 16-10-61. Magistrate, 1st Class, Ballia. Notice read over and explained to the O. P. in Hindustani. Sd. Ganga Prasad, Magistrate, 1st Class, Ballia."
(3.) The contention of Mr. Asif Ansari, the learned counsel for the petitioner before us is, firstly, that the entire proceedings are void and without iurisdiction inasmuch as the learned Magistrate, Sri Ganga Prasad, did not pass an order under section 112 of the Code of Criminal Procedure and secondly, that, in any case, no warrant of arrest could have been issued in the present case and the proceedings under Section 107 or at any rate, the proceedings after the issue of the warrant are illegal and without jurisdiction.;