AMIR SINGH 2ND PARTY Vs. STATE

JUDGEMENT

(1.) This application is directed against an order of the Sub-divisional Magistrate in charge of Hajipur, dated the 7th September, 1960, whereby he has called upon the petitioner to furnish an interim bond of Rs. 1,000/- with two sureties of Rs. 500/- each. He has passed this order in a proceeding under Section 107 of the Code of Criminal Procedure, which was pending against the petitioner.

(2.) Appearing for the petitioner, Mr. Ramen-shwar Prasad Sinha has urged three points. His first point is that the stage at which an order under Section 117 (3) could be passed had not been reached when the order dated the 7th September was passed. His contention is that an order tinder that sub-section can only be passed after the Magistrate has started taking evidence in accordance with Sub-section (1) of Section 117. His second point is that an order under Sub-section (3) of Section 117 cannot be based upon a police report. The last point is that the Magistrate was bound to give reasons for passing the order under Sub-section (3). In support of all these arguments, he has relied upon a Bench decision of this Court in Jagdish Prasad Verma v. The State, AIR 1957 Pat 106.

(3.) In my judgment the learned counsel has misconceived the scope of the above decision. In that case, the learned Magistrate had, by the same order, drawn up a proceeding under Section 107 against the petitioners and had called upon them to execute bonds under Sub-section (3) of Section 117. Their Lordships held that an order under Sub-section (3) of Section 117 could only be passed when the stage of Sub-section (1) of Section 117 was reached or, in other words, when the Magistrate was proceeding to enquire into the truth of the information on the basis of which he had drawn up the proceeding under Sections 107, 108, 109 or 110. Section 112 provides, when the Magistrate considers it necessary to take preventive action under any of these four sections, he shall make an order in writing setting forth several matters mentioned in the section. If the person who is proceeded against is present in Court, the order drawn up under Section 112 has to be read over or explained to him under Section 113. If he is not present in Court, the Magistrate has ordinarily to issue a summons, under Section 114, requiring him to appear. If he is in custody, a warrant has to be issued directing the officer, in whose custody he is detained, to produce him before the Court. The proviso to Section 114, lays down that, whenever it appears to the Magistrate that there is reason to fear the commission of a breach of the peace and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of the person concerned, he may issue a warrant in the very first instance. Under Section 115, every summons or warrant issued under Section 114 is to be accompanied by a copy of the order made under Section 112, and the copy has to be delivered by the officer serving or executing the summons or warrant to the person upon whom it is served or executed. It is perfectly clear from Ss. 113, 114 and 115 that they provide a complete procedure for making the terms of the order drawn up under Section 112 known to the person against whom preventive action is taken Tinder any of the four sections mentioned above. Sub-section (1) of Section 117 provides for the Magistrate to enquire into the truth of the information upon which he has taken action. It lays down that the Magistrate will proceed with the enquiry after the order under Section 112 has been read or explained under Section 113 or the person concerned has been brought before him in compliance with, or in execution of, the summons or warrant issued by him under Section 114. If it appears to the Magistrate at any time before the person proceeded against is brought to his Court that there is likelihood of a brench of the peace and that it cannot be prevented otherwise than by immediate arrest of the person proceeded against, he may issue a warrant for the immediate arrest of that person. There is no provision for keeping the person in custody after he has been brought to Court in compliance with the summons or in execution of the warrant issued under Section 114 except that in Section 117 (3), which empowers a Magistrate to detain the person in custody until he executes the interim bond or the enquiry is concluded. It seems to me therefore, that, when the person proceeded against is present in Court and the order under Section 112 is read or explained to him under Section 113, or, when he is brought to Court to compliance with, or in execution of, a summons or warrant issued under Section 114, the manner in which the Magistrate can safeguard against commission of a breach of the peace by that person is provided for in Sub-section (3) of Section 117 only. It is not at all necessary that he should start taking evidence before taking action under that Sub-section. In other words, the stage at which a Magistrate can take recourse to Sub-section (3) is reached as soon as the stage of Section 113 or Section 114 is passed. Banerji, J., who delivered the judgment of the Bench in Jagdish Prasad Verma's case, AIR 1957 Pat 106 has made this clear by the following observation: