JANARDAN SINGH Vs. BANARSHI SINGH AND ORS.

JUDGEMENT

(1.) This revision is directed against the order dated 18.11.1970 in case No. 225 M of 1969 pending in the court of Mr. Z.H. Khan, Magistrate, First Class, Begusarai. This is a case under Sec. 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) between the present petitioner as the first party and present opposite party ( nos. 1 to 6) as the second party. Under the impugned order the Magistrate has discharged opposite party nos. 1 to 4 from the proceeding and directed the continuance of the proceeding against the remaining two (opposite party nos. 5 and 6). The relevant facts are as follows. The sub -divisional Magistrate, Begusarai received a police report on 27.6.1969 recommending action under Sec. 107 of the Code against the aforesaid six members of the opposite party. Being satisfied on that report that there was an apprehension of breach of the peace at the hands of those persons, he drew the proceeding under Sec. 107 of the Code against them on that very day i.e., 27.6.1959 calling upon them to show cause why they should not each be made to execute bond of Rs. 1000/ - with two sureties of the like amount, to keep peace for a period of one year. The proceeding, in due course, was served upon those persons and they filed their show cause on 10.10.1969 when the Sub -divisional Magistrate transferred the case to the file of the above Magistrate Mr. Z.H. Khan for disposal. In the meanwhile on 19.7.1969 the first party filed a petition before the Sub -divisional Magistrate for taking action under Sec. 117(3) of the Code against the members of the second party on the allegations made therein. The Sub -divisional Magistrate referred that petition to the local police for enquiry and report. After necessary enquiry the police submitted the report in which they recommended for action under Sec. 117(3) against those persons. The parties were duly heard by the Magistrate on that report on 16.12.1969 and he directed the second party members to execute ad -interim bonds of Rs. 1000/ - with two sureties of the like amount each to keep peace till the substantive proceeding has been disposed of. While recording this order, the Magistrate postponed the hearing of the substantive proceeding to 29.12.1969.

(2.) The second party challenged the above order of the Magistrate under Sec. 117(3) before the High Court in Criminal Revision no. 456 of 1970. That revision was allowed, on 16.4.1970, in favour of the present opposite party nos. 1 to 4 and dismissed in respect of the other two persons (opposite party nos. 5 and 6). The main reason which appears to have weighed with the learned Judge in allowing the revision in favour of those four persons was that they were railway employees at Lillooah in West Bengal and were likely to stay away from their village in connection with their employment and as such the order of the Magistrate against them was not proper.

(3.) On 23.7.1970 a petition was again filed by the first party for taking action under Sec. 117(3) of the Code against the opposite party. The Magistrate referred that petition to the local police for enquiry and report. In his report the Officer -in -charge recommended for taking ad -interim bonds from the opposite party. When this report was put up before the Magistrate on 18.9.1970, a prayer was made on behalf of the opposite party that the report made by the officer -in -charge should be verified by some higher police officer. Accordingly, the Magistrate referred the report to the Deputy Superintendent of Police for necessary verification. The Deputy Superintendent of Police, however, got the matter enquired into by his Inspector who sent his report dated 13.10.1970. In that report of the Police Inspector, which was duly endorsed by the Deputy Superintendent of Police, the recommendation was that the proceeding under Sec. 107/ 117(3) of the Code should be dropped against the four opposite party (present opposite party nos. 1 to 4) because they were in service at Lillooah where they stayed permanently and the proceeding under Sec. 107 was vexatious. When this report came before the Magistrate on 17.10.1970, a protest was made by the first party against it. Thereupon, the Magistrate referred the matter to the Deputy Superintendent of Police again directing him to make a personal enquiry at the spot and report if action under Sec. 117(3) against the opposite party was necessary particularly in view of the High Court's judgment under which the Magistrate's previous order for taking such bonds had been quashed. While making this order on 17.10.1970, the Magistrate directed that in the mean time witness should be produced as ordered earlier and the case was adjourned to 2.11.1970. On this date (2.11.1970) first party filed hazari of two witnesses and two of the opposite party were present and the rest were represented. The report of the Deputy Superintendent of Police was later received in which he made recommendation against taking of ad interim bond under Sec. 117(3) from the four persons concerned (present opposite party nos. 1 to 4). As the trying Magistrate was out, the case was adjourned to 17.11.1970. On 11.11.1970 the first party protested to the correctness of the report of the Deputy Superintendent of Police and wanted the Magistrate to have further enquiry done into that matter. He, however, rejected that prayer and directed him (first party) to produce witnesses so that the proceeding itself could be disposed of early. On 17.11.1970 hazari of two witnesses was filed for the first party. Two of the opposite party were present and the rest were represented. The Magistrate adjourned the case to 18.11.1970 for evidence and also for hearing regarding dropping of the proceeding against some of the opposite party. On this date (18.11.1970) again hazari of two witnesses of the first party was filed and out of the six opposite party only two were present. The Magistrate heard the parties on the issue of dropping the proceeding partially against four of the opposite party (present opposite party nos. 1 to 4) and in the impugned order he dropped the proceeding against them (opposite party nos. 1 to 4) holding that no reasonable apprehension existed from them. He further ordered that the proceeding would continue against the remaining two opposite party. As already observed,' it is this order of the Magistrate which is the subject of challenge in this revision.