KARIM Vs. STATE

JUDGEMENT

(1.) THIS is a criminal reference made by the Sessions Judge, Pali, recommending that the order passed by the Sub-Divisional Magistrate, Pali, against Karim and Shakoor, the petitioners, under sec. 117 (3) of the Code of Criminal Procedure be set aside because the Magistrate had passed the order for interim security without reading over or explaining the order under sec. 112 of the Code of Criminal Procedure, or delivering a copy thereof to the petitioners.

(2.) ON 1. 11. 1960 a report was made by the Prosecuting Sub-Inspector that there was an apprehension of a breach of the peace at the hands of Karim, Shakoor, Bastia, Rama, Bhera and Goma (hereinafter called the opposite parties) who threatened violence towards Daula Kumhar regarding a plot of land. The opposite parties, the police requested, be bound down under sec. 107 of the Code of Criminal Procedure to keep peace. The Sub-Divisional Magistrate, Pali, on receipt of this information passed an order that the case be registered and the opposite-parties be issued notice to show cause why they be not bound to keep peace for a period of four months and execute bond in the sum of Rs. 300/- each and furnish security in the like amount. The case was posted for hearing on 21. 11. 1960. A notice was issued on or about 9th November, 1960 to each one of the opposite-parties. In the body of the notice it was mentioned that a copy of the preliminary order was enclosed. These notices were served on or before 15th November, 1960, on all the opposite parties. ON 11. 11. 60, however, another application accompanied with an affidavit was moved before the Sub-divisional Magistrate complaining that the opposite parties threatened to kill the applicant Daula and were bent upon committing a breach of the peace and there was an imminent danger which required action under Sec. 117 (3) of the Code of Criminal Procedure. The Magistrate passed an order on the same date that notices be issued to the opposite parties under sec. 117 (3) of the Code of Criminal Procedure regarding them to submit bonds and sureties in the sum of Rs. 300/- each pending enquiry on 21. 11. 1960. ON this date an application was made on behalf of the opposite parties that they had not received copies of the preliminary order and, therefore, no proceeding under sec. 117 (3) could be taken. Further the opposite parties contended that there was nothing on the record to justify an order under sec. 117 (3 ). In the proceedings on 21. 11. 1960, the Magistrate asked the opposite parties to execute bonds with sureties in the sum of Rs. 200/- for their appearance and posted the case for next day. ON 22. 11. 60 another application on behalf of the opposite-parties was moved which repeated their grievance that they had not been supplied with a copy of the preliminary order and further that from the perusal of the papers it was evident that Daula in collusion with the police wanted to acquire illegal possession and, therefore, false proceedings were initiated. The opposite parties further denied the existence of any emergency. The Magistrate, however, held that there was an emergency necessitating an action under sec. 117 (3) and the order issued by him on 11. 11. 60 be complied with. Regarding the non-receipt of the copy or the preliminary order, the Magistrate observed that although copies had been sent yet the opposite parties may be furnished with extra copies of the same. Two out of the six opposite parties namely, Karim and Shakoor sons of Nathu, moved a revision application before the Sessions Judge, Pali, on 3-12-1960. The learned Sessions Judge on this revision application has submitted a report recommending that the order of the learned Sub-Divisional Magistrate, Pali, demanding interim security under sec. 117 (3) be set aside.