SURAJ PRASAD Vs. STATE

JUDGEMENT

(1.) This is a reference by the learned Seasons Judge, Sitapur in the following circumstances : A criminal case was pending in the Panchaiti Adalat between Suraj Prasad and Mukta Prasad. Suraj Prasad made an application for transfer of the case from the Panchaiti Adalat. The application for transfer came up for hearing before the Sub-Divisional Magistrate of Misrikh at Sitapur, When the application was taken up for hearing by the Magistrate, Suraj Prasad & Mukta Prasad began to exchange hot words in court. Ram Prasad joined his brother, Suraj Prasad. Thereupon the Magistrate drew up a 'rubkar' initiating proceedings under Section 107 of the Code of Criminal Procedure against Suraj Prasad, Ram Prasad and Mukta Prasad. This 'rubkar' is dated 29-9-1950. On the same date the Magistrate drew up a notice under Sections 112/107 of the Code calling upon Suraj Prasad, Ram Prasad and Mukta Prasad to show cause why they may not be ordered to execute a personal bond for Rs. 1,000/- and to furnish two sureties in the like amount for keeping the peace for a period of six months. Having initiated the proceedings under Section 107 of the Code in the manner stated above, the learned Magistrate made an order under Section 117(3) of the Code directing Suraj Prasad, Ram Prasad and Mukta Prasad to execute a personal bond for Rs. 1,000/- and to furnish two reliable and substantial sureties each in the like amount for keeping the peace until the conclusion of the enquiry under Section 107 of the Code pending against them.

(2.) Against the above order passed by the Magistrate Suraj Prasad and Ram Prasad filed a revision in the court of the Sessions Judge of Sitapur. It was urged before the learned Sessions Judge that there were no materials before the Magistrate to satisfy him that the parties were likely to commit breach of peace or disturb the public tranquillity or do any wrongful act that might occasion breach of the peace and as such the proceedings under Section 107 of the Code were illegal and unnecessary. On this point the learned Sessions Judge expressed the view that there was no sense in resorting to proceedings under Section 107 of the Code. Another point raised before the learned Sessions Judge was that the Magistrate was incompetent to take any action under Section 107 of the Code in connection with what had taken place in his presence in court, inasmuch as he could act under Section 107 of the Code on information received from others and not on what he had himself seen. In disposing of this : contention, the learned Sessions Judge observed that the action taken by the Magistrate was wholly unwarranted and not supported by the pro-visions of Section 107 of the Code. The third point raised before the learned Sessions Judge was that the act complained of having taken place at Sitapur, it was not within the jurisdiction of the Magistrate and no proceedings could have been taken by him under Section 107 for want of jurisdiction. This contention was upheld by the learned Sessions Judge, Lastly, it was contended before him that the Magistrate did not issue an order under Section 112 of the Code and so he was incompetent to take any action under Section 117(3) of the Code. The learned Sessions Judge has pointed out that the procedure laid down in Section 112 of the Code was not followed by the Magistrate. He further observed that the procedure laid down in the first part of Sub-section (1) of Section 117 of the Code was also not complied with and that the order of the Magistrate was illegal on account of the non-observance of the procedure laid down in Sections 112 and 117 Sub-section (1) of the Code.

(3.) Accordingly, the learned Sessions Judge has made this reference and recommended that the order of the Magistrate be quashed and the proceedings under Section 107 of the Code be dropped.