ISHWAR PRASAD Vs. SAGARMAL KEJRIWAL

JUDGEMENT

(1.) THIS application by the first party is directed against an order of the Sub-divisional Magistrate ot Dhanbad dated the 27th September, 1963, whereby he has dropped a proceeding under Section 107 of the Code of Criminal Procedure which was drawn up earlier.

(2.) IT appears that, when the first party filed an application before the Sub-divisional Magistrate for action under Section 107 against the second party, he called for a police report. The police reported that the first party's witnesses had supported his case but witnesses of the neighbourhood, who were examined, denied to have any knowledge of the incident alleged by the first party. IT was also stated in the report that the members of the second party were respectable persons, and that they were not likely to commit breaches of the peace. This report was put up before the Sub-divisional Magistrate on the 16th May, 1963. On that date, he came to the conclusion, in spite of the police report, that the matter should be thrashed out in Court. He, therefore, directed that a proceeding under Section 107 should be drawn up. No proceeding was, however, drawn up or issued until the 18th May, 1953, when the learned Magistrate passed a formal order, directing the second party to show cause why they should not be ordered to execute a bond of Rs. 1000/- each with two sureties of like amount each to keep the peace for a period of one year.

(3.) APPEARING on behalf of the first party petitioners, Mr. Tarini Prasad has urged that, once an order under Section 112 of the Code is drawn up, the Magistrate has no jurisdiction to drop the proceeding until he makes an inquiry as required by Section 117. He concedes that it is not necessary for the Magistrate to take, under Section 117, all the evidence that is produced before him, but he urges that the Magistrate should take some evidence. In my judgment, the legal position is somewhat different. There is no doubt that, being satisfied that a proceeding under Section 107 against the second party was necessary in this case, he drew up .an order under Section 112 on the 18th May, 1963. It has been laid down in Section 117 that, when an order under Section 112 has bee a read or explained under Section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under Section 114, the Magistrate shall proceed to inquire into the truth ot the information.... This does not mean, however, that the Magistrate cannot drop the proceeding before proceeding to inquire into the truth of the information. If, at any stage, he feels that continuance of the proceeding would be fruitless, because there was no longer any apprehension of the breach of the peace at the hands of the persons proceeded against, I do not see why he cannot drop the proceeding. It will be sheer waste of the Magistrate's time to continue with the proceeding after coming to a conclusion that it was no longer necessary to go on with it. This conclusion is supported by a decision of the Jaipur Bench of Rajasthan High Court in Sheokaran v. Dulla .