- (1.) THIS is a criminal reference made by the Sessions Judge, Pali, recommending that the order passed by the Sub-Divisional Magistrate, Pali, against Karim and Shakoor, the petitioners, under sec. 117 (3) of the Code of Criminal Procedure be set aside because the Magistrate had passed the order for interim security without reading over or explaining the order under sec. 112 of the Code of Criminal Procedure, or delivering a copy thereof to the petitioners.
(2.) ON 1. 11. 1960 a report was made by the Prosecuting Sub-Inspector that there was an apprehension of a breach of the peace at the hands of Karim, Shakoor, Bastia, Rama, Bhera and Goma (hereinafter called the opposite parties) who threatened violence towards Daula Kumhar regarding a plot of land. The opposite parties, the police requested, be bound down under sec. 107 of the Code of Criminal Procedure to keep peace. The Sub-Divisional Magistrate, Pali, on receipt of this information passed an order that the case be registered and the opposite-parties be issued notice to show cause why they be not bound to keep peace for a period of four months and execute bond in the sum of Rs. 300/- each and furnish security in the like amount. The case was posted for hearing on 21. 11. 1960. A notice was issued on or about 9th November, 1960 to each one of the opposite-parties. In the body of the notice it was mentioned that a copy of the preliminary order was enclosed. These notices were served on or before 15th November, 1960, on all the opposite parties. ON 11. 11. 60, however, another application accompanied with an affidavit was moved before the Sub-divisional Magistrate complaining that the opposite parties threatened to kill the applicant Daula and were bent upon committing a breach of the peace and there was an imminent danger which required action under Sec. 117 (3) of the Code of Criminal Procedure. The Magistrate passed an order on the same date that notices be issued to the opposite parties under sec. 117 (3) of the Code of Criminal Procedure regarding them to submit bonds and sureties in the sum of Rs. 300/- each pending enquiry on 21. 11. 1960. ON this date an application was made on behalf of the opposite parties that they had not received copies of the preliminary order and, therefore, no proceeding under sec. 117 (3) could be taken. Further the opposite parties contended that there was nothing on the record to justify an order under sec. 117 (3 ). In the proceedings on 21. 11. 1960, the Magistrate asked the opposite parties to execute bonds with sureties in the sum of Rs. 200/- for their appearance and posted the case for next day. ON 22. 11. 60 another application on behalf of the opposite-parties was moved which repeated their grievance that they had not been supplied with a copy of the preliminary order and further that from the perusal of the papers it was evident that Daula in collusion with the police wanted to acquire illegal possession and, therefore, false proceedings were initiated. The opposite parties further denied the existence of any emergency. The Magistrate, however, held that there was an emergency necessitating an action under sec. 117 (3) and the order issued by him on 11. 11. 60 be complied with. Regarding the non-receipt of the copy or the preliminary order, the Magistrate observed that although copies had been sent yet the opposite parties may be furnished with extra copies of the same. Two out of the six opposite parties namely, Karim and Shakoor sons of Nathu, moved a revision application before the Sessions Judge, Pali, on 3-12-1960. The learned Sessions Judge on this revision application has submitted a report recommending that the order of the learned Sub-Divisional Magistrate, Pali, demanding interim security under sec. 117 (3) be set aside. I have carefully examined the recommendation made by the Sessions Judge, Pali. I have also heard the learned Assistant Government Advocate on this reference but I find myself unable to accept the recommendation made by the learned Sessions Judge. A close examination of the statutory provisions relevant to the point involved in the present reference would show that whenever any of the Magistrate mentioned in sec. 107 of the Code of Criminal Procedure is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding, may, in manner provided under the law require such person to show cause why he should be not ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate think? fit to fix. In the instant case on the report made by the Prosecuting Sub-Inspector the Sub-Divisional Magistrate, Pali, on 1. 11. 1960 was satisfied that the opposite-parties were threatening a breach of the peace in regard to the plot of land in dispute and accepting this information as correct the Magistrate decided to act under sec. 107 and required the opposite parties to show cause as to why he should not make an order under sec. 107 of the Code of Criminal Procedure. The notice indicated that the bond which was required to be executed by the opposite-parties was to be in the sum of Rs. 300/- with a surety in the like amount and the period was stated to be that of four months. Regarding the substance of the information the notice made a reference to the preliminary order and a copy thereof was alleged to have been enclosed with the notice. On an examination of the notice addressed to Goma, I find that a copy of the order erroneously described as a copy of the complaint, was pasted at the outer door of his house. In all these notices there is a mention of the fact that a copy of the preliminary order was enclosed. The learned Sessions Judge has observed that it is not established that a copy of the order under sec. 112 was supplied to the opposite parties as required by sec. 115 of the Code of Criminal Procedure. I am afraid this finding is not consistent with the record. The notices distinctly denote that there was an accompanying document with the notice namely, the preliminary order. The serving report in one case also mentions that the enclosed copy of the order was pasted at the house of one of the opposite parties. There is intrinsic evidence available in the application made on behalf of the opposite-parties on 22. 11. 1960 suggestive of the fact that they were fully aware of the contents of the application moved against them and the order passed thereon. Therefore, a copy of the notice as required by sec. 115 appears to have been served on the opposite-parties on or before 15th November, 1960. The Magistrate however, could have avoided all controversy on this point if he had seen that additional copies were furnished to the opposite parties on 21. 11. 1960. Even assuming for the sake of argument that such a copy had not been served it would be a mere irregularity as the opposite parties were aware of its contents. It would not vitiate the proceedings for the obvious reason that no prejudice could be caused. The opposite parties in their application itself disclosed the broad contents of the order under sec. 112. Such an irregularity appears to be saved by the provisions of sec. 537 of the Code of Criminal Procedure. In almost similar circumstances, in Emperor Vs. Suleman Adam (1) the Bombay High Court treated this omission as a mere irregularity curable by sec. 537 of the Code of Criminal Procedure. The next fault found by the learned Sessions Judge with the order of the Sub-Divisional Magistrate, Pali, is that no order under sec. 117 (3) could be passed by the Magistrate unless a copy of the order under sec. 112 was delivered to the opposite parties. In the opinion of the Sessions Judge on 11. 11. 1960 a notice under sec. 115 and the preliminary order under sec. 112 not having been served on the opposite parties, the Magistrate had no jurisdiction to proceed under sec. 117 (3) of the Code of Criminal Procedure. I am unable to agree. All that sec. 117 (3) requires is that pending the completion of the enquiry under sub-sec. (1) of sec. 117, the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of public tranquillity 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 an 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 enquiry and may detain him in custody until such bond is executed or, in default of execution, until the enquiry is concluded. The requisite conditions for the exercise of powers under sec. 117 (3) would appear to be that a case is pending before a Magistrate; he considers that immediate measures are necessary to save peace or public tranquillity; then for reasons to be recorded in writing he may direct the person in respect of whom an order under sec. 112 has been made to execute a bond pending the conclusion of enquiry. In order to ascertain the person against whom such orders under sec. 117 (3) could be made a reference to sec. 112 has been made. All that is said is that orders against the persons concerned must have been passed under sec. 112 of the Code of Criminal Procedure. Such orders in the case before me were passed on 1. 11. 1960. The considerations of serving the order on such person are not material or relevant for exercise of jurisdiction under sec. 117 (3 ). This provision is intended to arm the Magistrate with ample power in appropriate cases to take immediate action. Any delay in action might defeat the very object. If the exercise of power under sec. 117 (3) was dependent on the service of the order under sec 112 the very purpose of sec. 117 (3) may stand frustrated in some cases. For instance in a case where mere apprehension of breach of the peace has been reported to a Magistrate without any indication for immediate action the Magistrate passes an order under sec. 112. The opposite party is not present in the Court. The summonses are issued to the opposite party. They are in the process of being served. In the meantime developments arise and the applicant rushes to the Magistrate and seeks immediate protection. Is the Magistrate powerless in such a situation to afford adequate protection? The answer is an unambiguous no. Action under sec. 117 (3) is not dependent on the service of the order under sec. 112 of the Code of Criminal Procedure. It is the urgency of the situation which will determine the action. Even ex-parte orders under sec. 117 (3) would appear to be permissible. Reference may in this connection be made to Ratilal Vs. State (2 ). No question of service of notice, under sec. 111 of the Code of Criminal Procedure Code arises in such emergencies. Chapter VIII of the Code of Criminal Procedure deals with prevention of offences. An interpretation which tends to delay or defeat such object must be rejected. Regarding the omission to read and explain the order under sec. 112 of the Code of Criminal Procedure to the opposite parties a distinction has to be kept in mind between secs. 113 and 114. Reading of the order is required only in respect of a person against whom order under sec. 112 has been passed and he is present in Court. The opening words of sec. 114 are "if such person is not present in Court. . . . . . " to whom summons or warrant as the case may be, has to be issued with which a copy of the order has to accompany as required by sec. 115 of the Code of Criminal Procedure exclude the applicability of sec. 113 of the Code. Therefore, the reading or explaining of order under S. 112 of the Code of Criminal Procedure as envisaged by sec. 113 of the Code of Criminal Procedure is obviously inapplicable to cases where (procedure under sec. 114 and 115 has been adopted.) The case before me is one under sec. 114 and 115 of the Code of Criminal Procedure and not of sec. 113. I, therefore, find nothing wrong in the order of the Sub-Divisonal Magistrate, Pali, dated 11. 11. 1960, which was confirmed on 22. 11. 60 requiring the opposite parties to execute bonds under sec. 117 (3) of the Code of Criminal Procedure passed by the Magistrate relying on the affidavit submitted by Daula Kumhar. The recommendation made by the learned Sessions Judge, Pali, for quashing the order of the Sub-Divisional Magistrate, Pali, is in my opinion incorrect and must be rejected. The Sub-Divisional Magistrate, Pali, will proceed according to law. .;