BALKISHUN SAO Vs. MUNNO KHAN

JUDGEMENT

(1.) This application is directed against an order passed by the Sub-divisional Magistrate of Patna City on the 22nd July, 1966, drawing up a proceeding under Section 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) against the petitioners calling upon them to show cause by the 6th August, 1966, as to why they should not be ordered to execute bonds of rupees one thousand with two sureties of the like amount each for keeping peace for a period of one year. It appears that this order was passed on the basis of a police report of the Malsalami Police station that there was an apprehension of the breach of the peace due to old enmity for a piece of land, which is a graveyard.

(2.) Learned Counsel for the petitioners has submitted that the order of the Court below is vague and the notices served upon the petitioners did not disclose as to what was the substance of the informations which they were to answer. In this connection he has referred to Section 112 of the Code, which provides that when a Magistrate acting tinder Section 107 of the Code deems it necessary to require any person to show cause, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, etc. I think the contention of the learned counsel is well founded.

(3.) Under Section 107 of the Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace he may require such person to show cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for a period not exceeding one year. This has to be done in the manner provided in the subsequent sections and the manner is provided in Section 112 of the Code. That section requires a Magistrate to make an order in writing setting forth the substance of the information received. Here, in the instant case, it appears that the learned Magistrate has not given the substance of the information received in the order. He has simply passed orders in the following terms: "Perused the police report of Malsalami P. S. and duly forwarded by D. I. Police, Patna City, for action under Section 107 Cr. P. C. Whereas, I am satisfied from the police report of Malsalami P. S. that there is a serious apprehension of breach of peace at the hands of members of O. P. due to old enmity for piece of land which is graveyard which may disturb the public peace and tranquillity in a place which lies within the local limits of my jurisdiction. Draw up proceeding under Section 107 Cr. P. C. against the members of O. P. It is not stated in this order as to what was the substance of the report of the police and in what manner the petitioners were likely to commit breach of the peace. It is also not stated as to with regard to which graveyard there was apprehension of breach of the peace. All these things have been left vague. The notices to show cause served on the petitioners were in these very terms. Therefore, it was not clear from the contents of the notices as well as to what allegations the petitioners were to answer. Such order which does not contain the substance of the information received has been held to be bad in a decision of the Calcutta High Court in the case of Birdhaj Roy v. State, AIR 1953 Cal 491, which has been referred to by the learned Counsel for the petitioners. It has been held therein that the order of the Magistrate not indicating the nature of the information received which induced him to take action under Section 107 of the Code is bad. No decision counter to it could be pointed out by the learned Counsel for the opposite party.