PURSHOTTAM RAM AGARWAL Vs. STATE

JUDGEMENT

(1.) These two applications in revision arise out of the same proceeding under Section 107 of the Code of Criminal Procedure (hereafter to be referred as 'the Code' hence they have been heard together and are being disposed of by a common judgment. Criminal Revision No. 43 of 1969 is by twelve members of the second party to the proceeding and is directed against an order dated the 8th October 1968. Criminal Revision No. 39 of 1969 is by four other members of the second party to the same proceeding and is directed against an order dated the 9th October 1968.

(2.) It appears that the Circle Officer, Sahebganj Achal in the district of Muzaffarpur sent to the Sub-Divisional Magistrate, Sadar Muzaffarpur a letter dated the 30th September, 1968, stating that petitioners 1 and 2 of Criminal Revision No. 34 of 1969, and their father, Shankar Prasad Agarwal were going to open a daily market with effect from the 1st of October 1968, at a distance of hardly 1/4th of a furlong from the Hawalganj Nawanagar Kothia Bazar of the Government and that if they were allowed to open a daily market, the Government market would be totally finished resulting in a loss of five to six thousand rupees per annum to the Government, The Circle Officer, accordingly, requested the Sub-divisional Magistrate to take immediate necessary action so that the Government market may not be hampered,, and to issue direction to the Officer-in-charge Sahebganj Police Station to stop the opening of the said market from the 1st of October, 1968 till the final decision (of the Sub-divisional Magistrate). The Sub-divisional Magistrate was also requested to take immediate action under Section 107/144 of the Code. On receipt of this letter, which hag been made Annexure '1' to the petition the Sub-divisional Magistrate registered case No. 866 of 1968, under Section 144 of the Code and directed the police to take action under Section 151/107 of the Code. That order is not before me but the substance of it has been mentioned in the impugned order dated the 8th October, 1968. It is not quite clear that when a proceeding was drawn up under Section 144 and not under Section 107 of the Code, how could the Sub-divisional Magistrate ask the police to take action under Section 107 of the Code. On the 5th of October, 1968, the Circle Officer, Sahebganj, sent a letter (Annexure '2' to the petition) to the Officer-in-charge Saheb-ganj Police Station stating therein that in spite of imposition of an order under Section 144 of the Code, the market has been started on the 1st of October 1968, and that the party concerned were ready to take law into their own hands forcibly against the Government employees. He requested the Officer-in-charge to make over to him a copy of the report which was going to be submitted to the Subdivisional Magistrate. It was also pointed out in the letter that the incident created by the party by holding a parallel market against the open defiance of the Government orders proved that there was no law and order in the Sahebganj Market. He also forwarded a copy of this letter to the Subdivisional Magistrate, On the 8th October, 1968, the Subdivisional Magistrate drew up a proceeding under Section 107 of the Code against the petitioners of Criminal revision no. 43 of 1969. Perhaps it was drawn on the basis of Annexure '2' to the petition, but there is nothing in the order itself to indicate what materials other than the letter of the Circle Inspector dated the 30th September, 1968, he had before him to justify starting of a proceeding under Section 107 of the Code. By the same order he also issued notices to the petitioners of Criminal Revision No. 43 of 1969 calling upon them to show cause as to why they should not be ordered to execute ad interim, bonds of Rs. 2000/- with two sureties of like amount each under Section 117 (3) of the Code. On the 9th of October. 1968, he received a report of the Officer-in-charge Sahebganj Police Station and drew up a proceeding under Section 107 of the Code against the petitioners of Criminal Revision no. 39 of 1969. He also sent notices to them under Section 116 (3) of the Code. In the police report it is stated that the Thikedars of the Government market were requesting the Shopkeepers not to go to the newly started market of petitioners 1 and 2 of Criminal Revision No. 43 of 1969, on which some of the petitioners retorted them and became prepared even to assault them. After this the situation became tense and there was likelihood of a breach of the peace.

(3.) Mr. J. N. Verma for the petitioners has contended that unless the petitioners had appeared in an enquiry as contemplated under Section 117 (1) of the Code, the Subdivisional Magistrate could not have issued notices under Section 117 (3) of the Code. It is now well established that no action under Section 117 (3) of the Code can be taken before an enquiry under Sub-section (1) of that Section has started and that such an enquiry cannot start unless the persons against whom a proceeding under Section 107 of the Code has been drawn up have appeared before the Court. Mr. C. K. Sinha appearing on behalf of the State has frankly conceded that this part of the order of the Magistrate was wrong, but has contended that the Magistrate has also passed another order for execution of bonds under Section 117 (3) of the Code on the 2nd of November, 1968, after the petitioners appeared before him and they have executed the bonds. In the circumstances he has submitted that even if the issue of show cause notices for action under Section 117 (3) of the Code by orders dated the 8th and 9th of October, 1968, be wrong, they should not be set aside by this court in exercise of revisional powers. It is not, however, necessary to decide this question as Mr. Verma has also attacked the drawing up of the proceeding itself and is going to succeed on that point. If the initial order itself is illegal the order under Section 117 (3) of the Code must also be set aside.