ABDUL LATIF Vs. AMANAT ALI CHOUDHARY

JUDGEMENT

(1.) THIS Rule was obtained by the petitioner Abdul Latif against the order of Shri K. C. Das, Magistrate First Class (E), Gauhati dated 12 -1 -1972 passed in Misc. Case No. 337 of 1971 under Section 107, Cr.P.C. requiring him to execute an interim bond for keeping the peace under Section 117(3) of the Cr.P.C. The petitioner filed a revision petition against this order before the Sessions Judge at Gauhati and this having proved abortive he came to this Court and obtained a Rule on 7 -1 -1973. The impugned order of the Magistrate came to be passed in the following circumstances.

(2.) ON 4 -6 -1971 the opposite party Shri Amanat Ali Chowdhury filed a petition before the Additional District Magistrate (E) . Gauhati praying for taking action against the petitioner and 4 others under Section 107, Cri.P.C., alleging apprehension of serious breach of the peace from them in the matter of repairing a house said to belong to the opposite party standing on his land which was said to have been obstructed by the petitioner and others who were arrayed as the second party. This application was sent to the Police for enquiry and report. After enquiry Police submitted a report recommending drawal of a proceeding under Section 107, Cr.P.C. against the second party and to bind them down in the sum of Rs. 500/ - each for keeping peace for a period of one year with one surety of the like amount. On receipt of the police report the learned Additional District Magistrate transferred the case to Shri K. C. Das, Magistrate First Class, Gauhati, who being satisfied from the police report that there was apprehension of breach of the peace from the second party drew up an order under Section 112 of the Cr.P.C. asking the second party to show cause why they should not be asked to execute bonds in the sum of Rs. 1, 000/ - each for keeping peace for a period of one year. On receipt of the notice, the members of the second party appeared in Court on 28 -8 -1971. On this date as the trying Magistrate was absent, they were allowed to go on bail of Rs. 500/ -each to appear on 15 -9 -1971. On 15 -9 -1971 the case was adjourned to 15 -10 -1971 for showing cause by the second party. On the next day i.e. on 15 -10 -1971, the second party showed cause denying the allegations made by the first party. On this date the first party filed an application praying for taking interim bonds from the second party making some fresh allegations against them. It was stated, inter alia, in that petition that on 6 -10 -1971 the second partymen attempted to assault the first party and failing to assault him caused damage to his Auto Rickshaw for which an information was lodged at the Police Station. This application was sent to police for enquiry and report and the case was fixed on 25 -11 -1971 for evidence. On 25 -11 -1971 the case was adjourned on the application of the first party till 27 -12 -1971. In the mean time Police submitted a report on the application of the first party dated 15 -10 -1971 in favour of the first party. On receipt of this report the case was taken up by the Magistrate on an off day i.e. on 23 -12 -1971 in the absence of the second party and passed a curious order issuing warrant of arrest against the second party purportedly under Section 114, Cr.P.C. On 27 -12 -1971 the members of the second party appeared and they were allowed to go on bail of Rs. 500/ - each again and the case was fixed on 31 -12 -1971. On 31 -12 -1971 the following order was recorded by the Magistrate:

(3.) AN interim order under Sub -section (3) of Section 117 can be made only on the commencement of the enquiry, i. e. after compliance with the provisions of subsection (1). As held by the Supreme Court in Madhu Limaye v. Ved Murti AIR 1971 SC 2481 : 1971 Cri LJ 1715 the words 'pending completion of enquiry' occurring in Section 117(3) postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. In that case the order under Section 117(3) made by the Magistrate without examining any witness was set aside by the Supreme Court with the following observation: