MOHANLAL Vs. KASHI RAM

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Barabanki arising out of proceedings under Section 107 of the Code of Criminal Procedure. The learned Sessions Judge has recommended that the order dated the 25th August, 1955, passed by the Magistrate directing that Mohan Lal, Sahjoo, Ram Bharosey, Ram Samp and Buddhi be summoned for 7-9-1955, be set aside.

(2.) The facts giving rise to this matter are these. Kashi Ram moved an application against Mohan Lal and 15 others for action under Section 107, Cr. P.C. read with Section 117 of the Code, The learned Magistrate sent the application to S. O. Kothi for a report. The Station Officer of P. S.Kothi made a report on the 14th August, 1955, which was to the effect that it was Kashi Ram who was acting in a high-handed manner and that there was no apprehension of a breach of the peace on the part of Mohan Lal and 15 others against whom the application had been made by Kashi Ram. The learned Magistrate without taking any further evidence and without even examining Kashi Ram passed an order on the 25th August, 1955, which was to the following effect : - "Summon Mohan Lal, Sahjoo, Ram Bharosey, Ram Sarup and Buddhi for 7-9-1955."

(3.) It is manifest that the procedure adopted by the Magistrate was wholly unwarranted and was not dictated by the clear provisions of Section 107 of the Code of Criminal Procedure. That section provides that whenever a Magistrate 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 the manner provided by the Code require such person to show cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The power of a Magistrate to call for report from police or a subordinate Magistrate came up for consideration in a number of judicial decisions. The procedure provided for in Sections 202 and 203 does not in terms apply to a petition asking for an order for security being passed against a person because such a petition is not a "complaint" within the meaning of those sections but a Magistrate to whom such a petition is addressed is not bound to initiate proceedings in every case. With a view to satisfy himself an to the necessity of issuing process under Section 107 he has the right to test the accuracy of the information received by him before issuing notice to the person informed against. For this purpose the Magistrate has inherent power to refer the matter to the police or to a subordinate Magistrate for investigation or inquiry and report before he makes up his mind as to whether notice must issue or not. The Magistrate, has however, to form his own opinion.