RAM CHARAN AND OTHERS Vs. STATE

JUDGEMENT

(1.) ON 29 -4 -1965, a complaint was presented before the learned Magistrate by one Ram Shankar Singh. He directed the S.O. Ahraura to enquire and report. The S.O. submitted a report on 12 -5 -1965, and on that report, the learned Magistrate passed the following order on 18 -5 -1965:

(2.) SECTION 107 Code of Criminal Procedure empowers the Magistrate, if he is of opinion that there is sufficient ground for proceeding, to require the Applicants to show cause why they should not be ordered to execute a bond, with or without sureties, for keeping the peace for some specified period. This section enjoins the Magistrate to follow the procedure laid down in the succeeding sections. Section 112 Code of Criminal Procedure provides that, when the Magistrate deems it necessary to require a person to show cause Under Section 107 Code of Criminal Procedure he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties (if any) required. After recording the order Under Section 112 Code of Criminal Procedure the Magistrate may, as provided by Section 113, if the person against whom the order is made is present in court, read out the order to him or, if he so desires, explain the substance to him. If the person is not present in court, then the Magistrate must act as provided by Section 114, i.e., he must then issue a summons requiring him to appear. If such person is in custody, then a warrant will be issued to the officer, in whose custody he is, to bring him to court. Section 115 then provides that every summons or warrant issued Under Section 114 shall be accompanied by a copy of the order made Under Section 112 Code of Criminal Procedure. These sections leave no room for doubt that no summons can be issued by a magistrate unless he has first recorded the order Under Section 112 Code of Criminal Procedure. No such order has been recorded in the present case and therefore, the learned Magistrate had no jurisdiction to issue the summons and the order passed by him is illegal. In his explanation, the learned Magistrate has said that he had issued the summons only for making up his mind whether to make an order Under Section 112 Code of Criminal Procedure or not. According to him, since it is within his discretion to make an order Under Section 112 or not, he can do so after hearing both the sides. This is a clear misunderstanding of the provisions of the Code. The proceedings upto the stage of Section 115 Code of Criminal Procedure are, in a sense, ex parte proceedings and the learned Magistrate has to make up his mind one way or the other on the basis of the complaint or the police report. Section 107 Code of Criminal Procedure requires a Magistrate to make up his mind on the basis of the information which he receives. If he is satisfied from that information that a person is likely to commit a breach of the peace or disturb the public tranquility, he will record an order Under Section 112 Code of Criminal Procedure; if he is not so satisfied, he will not record an order Under Section 112 and will refuse to proceed further. He is not bound in every case, as the learned Magistrate seems to suggest in his explanation, to record the order Under Section 112 Code of Criminal Procedure.