- (1.) THIS is a reference by the Sessions Judge,sawai Jaipur and Ganga-pur recommending that an interim order for security passed by the sub-Divisional Magistrate, Sawai Jaipur, under section 145 and 107 Cr. P. C. be set aside as the Magistrate had stated no reasons for taking such a security.
(2.) THE proceedings under section 107 and 145 Cr. P. C. were initiated against Nathu and Mahadeva party No. 1 and Rura and others party No. 2 on a report by the Sub-Inspector of Police. THE Sub-Divisional Magistrate after recording the statement of the Sub-Inspector made an order with the direction that notices should be issued to the parties under sections 107 and 145 Cr. P. C. and that they should also execute a personal bond for Rs. 500/- each with two sureties of Rs. 250/- each for keeping the peace until the conclusion of inquiry under section 107 Cr. P. C. THE subject of dispute was also attached pending the proceedings, by the same order. Party No 1 challenged the order of interim security before the Sessions Judge, Sawai Jaipur and Gangapur who has made this reference here. It may be observed that under section 117 (3) Cr. P. C. the Magistrate has been given direction to direct a person in respect of whom an order under section 112 Cr. P. C. has been made to execute a bond with or without sureties for keeping the peace until the conclusion of the inquiry, if he considers that immediate measures are necessary for prevention of a breach of the peace or the disturbance of public tranquillity. But when the person proceeded against under section 105 Cr. P. C. is present in court an order under section 117 (3) Cr. P. C. can be made only after the order made under section 112 Cr. P. C. has been read out or explained under section 113 Cr. P. C. to such person. When such an order is passed the Magistrate is hound to record reasons for taking interim security. Orders under sec. 117 (3) Cr. P. C. are not mere routine orders. It must appear from the record that the Magistrate has considered first that it was necessary to pass an order under section 113 Cr. P. C. and then he has considered the case under section 117 (3) Cr. P. C. and considered it necessary to pass an order under that sub-clause. The mere fact that the same information supports and the same statements are the basis of both orders does not offend either against the provisions of the Cr. P. C. or against the interpretation of those provisions. In this case the Magistrate has not drawn up a preliminary order as required by section 112 Cr. P. C. and in the order of taking security he has said nothing as to why interim security was necessary. Although all the persons proceeded against under section 107 Cr. P. C. with the exception of two persons were present before the court when the order under section 112 Cr. P. C. as well as that for interim security was made the order made under section 112 Cr. P. C. was not read over or explained to them. In such cases it should appear conclusively from the record that the order was read out or explained to the person proceed against. As has been held in A. I. R. 1943 Sind 163, an order passed under section 117 (3) Cr. P. C. without complying with this procedure is premature and illegal and on this ground alone the order of the Magistrate cannot be upheld. It is also evident from the record that in making an order for interim security the Magistrate has not applied his mind to the case of each of the persons proceeded against regarding the necessity of such an emergent action. No reasons have been assigned for making such an order. It has been laid down in A. I. R. 1937 Sind 148 that it was incumbent on the court to state reasons in writing for an order under section 117 (3) Cr. P. C. But the mere non-recital of reasons is by itself not sufficient to vitiate such an order if there is material on the record which justifies the making of it. The Sub-Inspector who was examined by the Magistrate has stated that when he was called by the Tehsildar to the spot no imminent danger of a breach of the peace appeared to him. From this statement also it is difficult to think that a state of emergency for taking such a step had existed. The order for interim security, therefore, does not appear to have a legal basis and cannot be sustained. It was also not right for the Magistrate to hold a joint inquiry under section 117 Cr. P. C. in respect of two contending parties who had nothing in common between them in respect of the matter under inquiry. The reference is, therefore accepted and the order of the Magistrate for taking interim security from the rival parties is set aside. Before parting with the case it may also be observed that although a Magistrate has jurisdiction to proceed upon the same material under section 107 Cr. P. C. as well as under section 145 Cr. P. C. yet it is not desirable that the proceedings under both the sections should be taken at the same time. .;