T.N.R. Tirumalpad, C.J. - (1.) THE learned Sessions Judge has made this reference regarding the order of the Magistrate Shri W.U. Mulla, dated 30.11.61, by which lie dropped the proceedings under Section 107 Cr.P.C. against the respondents and discharged them from the proceedings and he has recommended that the said order should be set aside.
(2.) THE facts relating to this reference are as follows: The petitioner herein filed an application on 8.4.61 before Shri K.P. Chakraborty, S.D.M., Sadar, against the respondents alleging that the respondents entered on his land and started cultivating it and when he protested they threatened him and so he filled a complaint before the Police on 6.4.61 and that after the filing of the said complaint, the respondents were threatening again to beat and kill him and hence he had to file this complaint to take proceeding against the respondents under Section 107 Cr.P.C. The Magistrate called for a Police report from the O/C., Bishalgarh Police Station and the O/C reported on 4.5.61 stating that his enquiry disclosed that the respondents were really trying to create a breach of the peace by threatening to beat and kill the petitioner. Thereupon, the S.D.M., drew up proceedings under Section 107 on 26.5.61 against the respondents to show cause why they should not be ordered to execute a bond for Rs. 300/ - with one surety for Keeping the peace for a period of one year. On 29.6.61, both parties appeared in Court. But I find from the order -sheet that the order on that date was passed by Sri Bimal Dev, Magistrate and not by the S.D.M. He ordered bail for Rs. 100/ - each with one surety for the respondents. It is not known how another Magistrate could deal with the case and pass such an order. Thereafter, on 25.9.61, the case was transferred by the S.D.M. to Shri W.U. Mulla, Magistrate and on that day, the petitioner was present with two witnesses. Shri W.U. Mulla, however, adjourned the case to 27.10.61. On 27.10.61, we find an order in the order sheet "put up to -morrow for discussion". But this order Is not signed by the Magistrate. Again, we find another order en the very same date, namely, 27.10.61, stating that the first party was absent, that the second party was present and that the case was adjourned to 22.11.61. This order is also not signed by the Magistrate. As to what happened on 22.11.61, is not known as there is no order on that date In the order -sheet. What we next find la an order dated 30.11.61, stating that the Magistrate had heard the learned Counsel of both parties, that the record revealed that the trouble between the parties arose from a disputed land, that the dispute being the ground of the proceeding under Section 107 Cr.P.C. the parties should seek redress under Section 145 Cr.P.C. that the proceeding under the said section would decide the land dispute and bring an end to the apprehended breach of the peace until further decision was made by a competent Civil Court and that this was not a fit case for proceeding under Section 107 Cr.P.C. and therefore he dropped the proceeding and discharged the second party. It was against that order that the first party, namely, the petitioner moved the Sessions Judge and the Sessions Judge made this reference.
(3.) THE procedure adopted by the lower Court has been highly Irregular in this case from the very beginning. It is not known how Shri Bimal Dev, Magistrate could have passed any order for bail on 29.6.61, when the case was pending before the S.D.M. Shri K.P. Chakraborty. Again, there Is no provision In the Criminal Procedure Code for a Magistrate to direct a party who appears before him in answer to summons under Section 107 Cr.P.C to furnish bail. The respondents were not arrested and produced before him. Nor were they accused of or suspected of the commission of any non -bailable offence. Nor had the Magistrate issued any Warrant for the arrest of the respondents under Section 114 Cr.P.C. Hence, the Magistrate had no authority to direct them to furnish bail. The procedure to be followed is provided under Section 117(3) Cr.P.C. Section 117(3) provides that the Magistrate may for reasons to be recorded in writing, direct the respondents to execute a bond with or without sureties for keeping the peace or maintaining good behaviour until the conclusion of the enquiry. But in the present case, the Magistrate straightaway ordered the respondents to furnish toll even before reading over and explaining his order made under Section 112 Cr.P.C. to them. This was certainly irregular and should not have been done by the Magistrate. I find that it was only on the subsequent hearing dated 7.8.61 that the S.D.M. read over and explained the proceedings to the respondents. On that date, he did not consider it necessary to proceed under Section 117(3) against them. Of course, these observations are not strictly necessary for disposing of this reference. But I have seen the Magistrates in many cases acting in violation of the provisions under these security sections and I have made these observations to correct this particular irregularity in future.;