CHIT NARAIN CHOUDHARY Vs. KEDAR NATH JHA

JUDGEMENT

(1.) THE petitioners, who are the members of the first party to a proceeding under Section 107 of the Code of Criminal Procedure (hereinafter referred to as the Code), have filed this application, praying that the proceeding which has been drawn up in pursuance of the order of the Subdivisional Magistrate of Supaul dated the 26th May, 1970 should be quashed.

(2.) THE impugned order is in the following terms: Whereas I am satisfied from the report of the Officer Incharge Raghopur P.S. that the above named members of the opposite party are on inimical terms with the first party due to land dispute and as such they are bent upon to commit offence taking law in their own hands which may lead to serious breach of peace which cannot be averted unless members of both parties are run down under Section 107, Cr.P.C. You are therefore directed to execute a bond of Rs. 1000/- with two sureties of the like amount each to keep peace for a period of one year or to show cause, if any, by 10.6.1970.

(3.) IT is no doubt true that the impugned order does not fulfil the requirements of Section 112 of the Code. But the question which is of importance at this stage is as to whether on that ground alone the proceeding should be quashed. In my judgment, the observations of their Lordships of the Supreme Court, Quoted above, indicate that the true requirement of Section 112 is that the person to be proceeded against or called upon to show cause must get proper notice of what has weighed with or moved the Magistrate to take the action. Such proper notice of what has moved the Magistrate to take action should 1 normally be given by setting forth in the initial order itself the substance of the information which the Magistrate has received and on the basis of which he v has formed the opinion that sufficient ground for proceeding under the relevant section of the Code exists. But there is nothing sacrosanct about the words "substance of the information" and these words do not preclude the Magistrate from giving proper notice of what has moved him to take action by furnishing to the person sought to be proceeded against the information in full or in its entirety. Therefore, in a case where the Magistrate does not incorporate in his initial order the substance of the information which has moved him to take action, under Section 107 of the Code proper notice of what has moved the Magistrate to take the action can as well be given by furnishing the Person or persons proceeded against with a copy of the police report or any other material which is the source of the information received by the Magistate deciding to initiate the proceeding. If, therefore, the copy of the police report which had moved the Sub-divisional Magistrate in the instant case to take action under Section 107 of the Code were furnished to the petitioners they would undoubtedly get proper notice of what has moved the Sub-divisional Magistrate to take the action against them. Having regard to the aforesaid considerations. I am of the opinion that the proper order to be passed at this stage would be that the learned Sub-divisional Magistrate should first satisfy himself as to whether the apprehension of the breach of the peace in regard to which the report had been made to him in May, 1970 is still subsisting and if he is satisfied that such apprehension of the breach of the peace still exists, then he must furnish to the petitioners a true copy of the police report or any other material on the basis of which he has decided to take action under Section 107 of the Code because unless such a step is taken by him the petitioners cannot be called upon to show cause as contemplated by Section 112 of the Code.