MOULVI MUSHRRAT AHMED Vs. STATE

JUDGEMENT

(1.) Shri B. L. Nagpal, Additional Sessions Judge, Delhi, has forwarded this case with a recommendation that the order of Shri N. C. Jain, Sub Divisional Magistrate, Delhi, dated 5-12-1967 be modified to the extent that the part of the order relating to action under Section 117 (3) Criminal Procedure Code against Maulvi Musharraf Ahmed petitioner be set aside.

(2.) . It appears that the station House Officer, Police Station Lahori Gate, Delhi, made a report for action under Section 107, Cr. P. C., against the petitioner and on that report, on 5-12-196Z, the learned Sub-Divisional Magistrate passed an order as contemplated by Section 112, Criminal Procedure Code directing the petitioner to show cause why he should not be asked to furnish a bond in the sum of Rs. 5,000, with one surety in the like amount to keep the peace for a period of one year. In the same report, the police had also asked for action against the petitioner under Section 117 (3) Criminal Procedure Code, and on that report, the learned Magistrate making the enquiry, also directed the petitioner to furnish a bond under Section 117 (3) for Rs. S,000 with one surety in the like amount. As the recommendation of the learned Additional Sessions Judge shows, the recitals in the police report disclosed the existence of a dispute between the petitioner and one Mohd. Ahmed relating to the office of religious head in the Masjid Fetehpuri, Delhi. The matter in dispute is suggested to be pending adjudication in a Civil Court. On the complaint of Mohd. Ahmed, the Station House Officer, Police Station, Lahori Gate, visited the Masjid Fatehpuri, Delhi and finding an apprehension of breach of peace, made the report mentioned above. The challenge to action under Section 107, Criminal Procedure Code, was considered by the learned Additional Sessions Judge to be without substance, but in regard to the order under Section 117 (3) Criminal Procedure Code, the impugned order was held to be unsupportable. According to the recommendation, the learned Magistrate made the order under Section 117 (3) Criminal Procedure Code, only because a request to that effect had bees made by the police without himself properly considering the question of existence of emergency justifying immediate drastic action under sectionm 117 (3) Criminal Procedure Code.

(3.) . I have myself gone through the whole record and I am constrained to observe that the matter has been dealt with by the learned Magistrate in a most unsatisfactory manner and it certainly does not reflect the requisite judicial approach on his part; nor does it show that he has devoted to the case the anxious thought it demanded. Section 117 (3) Criminal Procedure Code provides as follows: