- (1.) THIS is a reference by the learned District Magistrate of Jodhpur and arises in the following circumstances:
(2.) ONE Natha applied for binding over Lachhman, his four sons Bhaniya, Bhomla, Bhuria and Chothia, and three other persons Pemla, Nadia and Dhania sons of Teja under sec. 107 Cr. P. C. on the allegations that he was in possession of certain fileds situated at village Siyara but the opposite party were wrongfully trying to dispossess him. The learned Sub-Divisional Magistrate of Jodhpur sent the application to the police for report. On receipt of the police report the Magistrate issued a notice under sec. 112 of the Code against Lachman and others to show cause why they should not be called upon to give security in the sum of Rs. 300/- each to keep the peace and be of good behaviour for a period of six months. Two of the persons to whom notice was issued appeared on the 11th of July and the case was adjourned to 20th August and fresh notices were directed to be issued against the rest. On 12th July the learned Sub-Divisional Magistrate took up the case suo-moto in the absence of the parties and issued orders to Lachman and his seven companions to give security in the sum of Rs. 300/- to keep the peace till decision of the complaint. The Magistrate purported to act under sec. 117 (3) Cr. P. C. On revision the learned District Magistrate has recommended that this order of 12th July 1952 be vacated. He is of opinion that the Sub-Divisional Magistrate had made a mistake in passing the order on a date on which none of the parties was present and if he was not satisfied for the issue of such an order on the 30th of June when the police report was received, there was no further material for the issue of that order on the 12th July 1952. Another objection raised before the learned District Magistrate, that the order issued under sec. 112 on the 12th July had not been read over to the accused and for that reason no interim order of security could be passed under sec. 117 (3), was overruled. This reference, in my opinion, must be allowed although not for reasons mentioned by the learned District Magistrate. According to the language of sub-sec. (3) of sec. 117 Cr. P. C, a court can direct the person in respect of whom an order under sec. 112 has been made to execute a bond with or without security for keeping the peace maintaining good behaviour until conclusion of the enquiry referred to in sub-sec. (1) of that section. Under sub-sec. (1), however, the enquiry begins only after the order under sec. 112 has been read over to the person against whom the notice has been issued. An order under sec. 117 (3) in the absence of the accused is not contemplated. If the Magistrate on issue of notice under sec. 112 considers that immediate action to prevent the breach of the peace is necessary, sec. 114 permits issue of a warrant for the arrest of the person against whom the notice is issued. According to the language of sec. 117, the notice under sec. 112 has to be read or explained as mentioned in sec. 113 to a person who is present in court or when he is brought before the court in compliance with or in execution of a summons or warrant issued under sec. 114 and after the order has been read over the Magistrate has to start his enquiry into the truth of the information | upon which the action has been taken. In the present case the order under, sec. 117 (3) Cr. P. C. was issued by the Sub-Divisional Magistrate in the absence of the accused. As a matter of fact the Magistrate did not pass an order on the 11th July even against two of the persons who had presented themselves on that date. The order passed by the Sub-Divisional Magistrate on 12th July 1952 is, therefore, contrary to law and is hereby set aside. The reference is accepted. . ;