C.B. Capoor, J. - (1.) This is a petition Under Sec. 561A of the Code of Criminal Procedure for the quashing of proceedings Under Sec. 107/117 Code of Criminal Procedure pending against the Applicants. The main ground on which the petition is based is that by a notice issued Under Sec. 112 of the Code of Criminal Procedure the Applicants were required to show cause as to why they be not required to execute a bond to keep peace for a period of one year and as the said period of one year has expired the proceeding cannot continue and in support of that contention reliance has been placed upon a ruling of this Court reported as Babu Ram and Anr. v/s. Rex, AIR 1949 All 21:, 1948 AWR 214 (H.C.). Before proceeding to discuss the aforesaid decision I propose to consider the question as if it were one of first impression. The Applicants have not been required to furnish interim security and as such Sec. 117 of the Code is not material. The relevant Ss. of the Code are 107, 112, 118 and 120. Sub -section (1) of Sec. 107 of the Code of Criminal Procedure inter alia provides that whenever a Presidency Magistrate, District Magistrate, Sub -Divisional Magistrate or Magistrate of the 1st Class is informed that any person is likely to commit a breach of peace...the Magistrate, if in his opinion there is a sufficient ground for proceeding may...require such person to show cause why he should not be ordered to execute a bond, with or without surety , for keeping peace for such period not exceeding one year as the Magistrate thinks fit. It is significant that the Sec. does not require that the period for which the person proceeded against may be required to execute a bond should commence from the date on which notice to show cause is either given or served. The order requiring a bond to be executed is to be made after an opportunity has been afforded to the person proceeded against to show cause and the Magistrate is satisfied that there is sufficient ground for proceeding. The final order is made Under Sec. 118 of the Code and if the person proceeded against is required to execute a bond the period for which the bond is to be operative must in the very nature of things commence from the date of the execution of the bond. There is nothing in Ss. 107, 112 and 118 of the Code to indicate that the period for which the person proceeded against may be required to execute a bond is to commence from the date when the notice Under Sec. 112 of the Code is either given or served. On the other hand Sec. 120 of the Code clearly provides that the period for which the bond is required to be executed shall commence from the date of such order unless the Magistrate for sufficient reason fixes a later date or the person proceeded against is sentenced or is undergoing a sentence of imprisonment in which case the period shall commence on the expiration of such sentence. Adverting to the Allahabad case relied upon on behalf of the Applicant one finds that neither any Sec. of the Code nor any Judicial authority on the point under consideration was specifically referred to. The view expressed in the aforesaid case was expressly dissented from by the Patna High Court in the case of Jangi Gope and Ors. v/s. The State through Ram Shakal Singh (infra). During the course of the judgment the learned Judge made the following observations: With great respect, I differ from the view taken by the learned Judge. If that were the correct position in law, then in all cases where because of long pendency of any appeal or revision the period initially fixed by the Magistrate for keeping the peace had expired, the proceeding taken Under Sec. 107 Code of Criminal Procedure will automatically fail. In most cases it will be difficult to dispose of an appeal from the order Under Sec. 118 Code of Criminal Procedure and revision, if any, from the appellate order, during the period fixed by the Magistrate for keeping the peace. If that were so, it will be easy for the persons bent upon disturbing the peace to destroy the effect of such proceeding by adoption of delaying tactics. The entire argument is fallacious and unreasonable to the extreme in that the very act of the persons bent upon committing the breach of the peace is used in their favour as a ground for quashing the entire proceeding. It is difficult to countenance such a course of conduct. If it were so, no proceeding Under Sec. 107 will have a successful termination because by causing deliberate delay and by taking an appeal from the order and hampering its expeditious disposal on some frivolous grounds or other the order of the Magistrate may be rendered easily infructuous, because of the expiration in the meantime of the period for keeping the peace or maintaining good behaviour, as the case may be, before the disposal of the connected appeal or revision. This contention is therefore supportable neither on principle nor on grounds of expediency. I am, therefore, unable to accept this contention. The proper course in such cases is that the period during which the Petitioners were to keep the peace or maintain good behaviour, as the case may be should be made operative from the date fixed by the appellate or revisional authority. I would, therefore, overrule this contention. With great respect to the learned Judge who decided the Allahabad case there appears to me to be considerable force in the aforesaid observations. There is a case of the Kerala High Court Govindan Nair v/s. State (infra) in which it was held that the period for which security is to be given is to commence from the date of the final order Under Sec. 118 and not from the date of the preliminary order Under Sec. 112 unless a Magistrate otherwise directs and that if preliminary order is silent as to the date of the commencement of the period the court is bound to give effect to the statutory provision. The 1949 Allahabad case (supra) was distinguished. Unfortunately the report of the aforesaid case is not available either in the Court Library or in the Library of the Bar Association and as such I have not been able to examine the aforesaid case in detail. On a consideration of the language of the relevant Ss. of the Code 112, 118 and 120 and of the weighty reasons assigned by the Patna High Court while dissenting from the Allahabad view, I, with respect to the learned Judge of the Allahabad High Court in 1949 case (supra), am not inclined to agree with the view expressed therein. However, keeping in view the dictates of propriety I do not propose to pass a final order and direct that the application be laid before the Hon'ble the Chief Justice for considering the desirability of ordering that the application be laid before a Bench of two Judges at an early date for disposal. DIVISION BENCH Tripathi, J. This is a petition Under Sec. 561 -A of the Code of Criminal Procedure for quashing of proceedings Under Sec. 107/117 Code of Criminal Procedure pending against the Petitioners in the court of a Magistrate First class, Jalaun. It first came up for hearing before Hon'ble Capoor, J. who has referred it for consideration by a Bench of two Judges. The facts of the case lie in a narrow compass: The SDM, Jalaun, received information from a police report dated 21 -9 -1965 that the Petitioners were likely to commit a breach of peace. Accordingly he initiated proceedings against them Under Sec. 107/117 Code of Criminal Procedure and issued a notice on the same date Under Sec. 112 of the Code requiring the Petitioners to show cause why they should not be ordered to execute a personal bond for Rs. 500/ - each with two sureties in the like amount to keep the peace for a period of one year. This petition is directed against those proceedings inter alia on the assertion that as the period of one year given in the notice Under Sec. 112 Code of Criminal Procedure has already expired the proceedings cannot continue any further and the Magistrate has no jurisdiction to proceed against the Petitioners. In support of this contention learned Counsel for the Petitioner has placed reliance on the decision of Agarwala, J. in the case of Baburam v/s. Rex, AIR 1949 All 21:, 1948 AWR 214 HC.
(2.) The learned single judge noticed a divergence of judicial opinion on the question raised in the petition and felt difficulty in agreeing with the view taken in the aforesaid Allahabad case. He has, therefore, referred it to a Division Bench.
(3.) We have heard learned Counsel for the parties.;