Sharma, J. - (1.) Heard Mr. B. Advani learned counsel for Mangi Lal and others appearing under the Legal Aid Programme and Mr. S.S. Bhandawat for the State.
(2.) This is a reference made by the Sessions Judge, Partabgarh, camp Chittorgarh, with a recommendation that the order passed by the learned Sub-Divisional Magistrate, Chittorgarh, on 8-11-1973, under S. 112, Cr. P. C. in a proceeding under S. 107, old Cr. P.C. may be quashed on the ground that the learned Sub-Divisional Magistrate omitted to set forth in his impugned order in writing the substance of the information on which he purported to proceed against Mangi Lal and others for prevention of breach of the peace.
(3.) The facts of the case, in brief, are as follows:- The Sub-Divisional Magistrate, Chittorgarh, received an information from the Station House Officer, Police Station, Chittorgarh, that there are two factions or parties in the labourers of Birla Cement Factory, Chittorgarh, and that quarrels ensue frequently between them. On 30-10-1973, Bhagwati Lal presented an application under S. 107/151, old Cr. P.C. against Mangi Lal and several other persons that the labourers were likely to commit breach of the peace or disturb the public tranquillity. An inquiry was made into the application by the Station House Officer and it was found that there was danger of breach of the peace from the side of the accused Mangi Lal and others. These persons picked-up quarrels with Rampal on 22-7-1973 and again on 23-7-1973 and that criminal cases under sections 452/147 and 323, IPC. were registered and investigation was made. As the Station House Officer apprehended breach of the peace, he requested the Sub-Divisional Magistrate for taking preventive measures against Mangi Lal and his associates. It appears that the Sub-Divisional Magistrate was of opinion that there was sufficient ground for proceeding under S. 107, Cr. P.C. He, therefore, thought it necessary to require Mangi Lal and others to show cause why they should not be ordered to execute a bond for keeping the peace. He, therefore, made an order in writing on 8-11-1973, setting forth the amount of the bond to be executed and the term for which it was to be executed and the number of the sureties required. The order passed by him is set out below:- ...[VERNACULAR TEXT OMITTED]... 4. From a bare perusal of this order it is manifest that the substance of the information received by the Sub-Divisional Magistrate on which he arrived at a conclusion that there was sufficient ground for proceeding against Mangi Lal and others was not set forth in his order in writing. On account of this omission to set forth the substance of the information in the order the persons proceeded against were deprived of a reasonable opportunity to know the matter upon which they were required to show cause. The notices issued to them in pursuance of the impugned order in writing do not contain the substance of the information received by the Magistrate. Such an omission on the part of the Sub-Divisional Magistrate has certainly caused prejudice to the persons proceeded against, because they were at a loss to know or understand the case against them and to come prepared to show cause against the matter upon which they were required to submit their replies. It cannot be over-emphasised that there ought to have been substantial compliance with the provisions of section 112, old Cr. P.C. before show cause notices were issued to Mangi Lal and others. The omission to give substance of the information in the impugned order has caused prejudice to the persons proceeded against. Reference in this connection may be made to an authority of their Lordships of the Supreme Court in Madhu Limaye v. S. D. M. Monghyr, AIR 1971 SC 2486 , wherein their Lordships were pleased to make the following observations "36. We have seen the provisions of S. 107. That section says that action is to be taken 'in the manner hereinafter provided' and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behaves us, therefore, to emphasis the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public. 37. The procedure begins with S. 112. It requires that the Magistrate acting under S. 107 shall make an order in writing setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. Since the person to be proceeded against has to show cause, it is but natural that he must know the ground the apprehending a breach of the peace of disburdance of the public tranquillity at his hands. Although the section speaks of the 'substance of the information' it does not mean the order should not be full, it may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word 'substance' means the essence of the most important parts of the information." 5. As the omission to give substance of the information in the impugned order has caused failure of justice and prejudiced to the persons proceeded against in this case, it is liable to be set aside. 6. Consequently, the reference is accepted and the impugned order passed by the Sub-Divisional Magistrate, Chittorgarh, on 8-11-1973 is quashed. However, it may be observed that if the persons proceeded against are likely to commit 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, it is open to the Sub-Divisional Magistrate to take fresh proceedings against them according to law.;