TEJARAM Vs. BHAIRON

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Jaipur District, recommending that the order of the Sub-Divisional Magistrate, Jaipur dated the 4th August, 1953, discharging the opposite party Bhairon and others in proceedings under sec. 107 of the Criminal Procedure Code be set aside.

(2.) I have beard Mr. P. N. Datta on behalf of the applicant and have also gone through the record of the case as well as the judgments of both the lower courts and the explanation of the learned Magistrate submitted under r. 80 of the rules of this Court. It appears that the police while making a report to the court that action be taken under sec. 107, sent up a list of six witnesses to be examined on behalf of the police. The learned Magistrate examined only three witnesses namely Nathu Lal, Gopi and Chuna. Thereafter, the learned Magistrate without examining the remaining witnesses of the list made an order that from the evidence recorded so far, he did not apprehend any danger of the breach of the peace and, therefore, he did not think it necessary to proceed further with the case. With these words, he discharged the opposite party. It has been argued by Mr. Datta that the procedure to be followed in cases under sec. 107 is the same as the procedure for conducting trials and recording evidence in summons cases. This has been provided by sub-sec. (2) of sec. 117 of the Criminal Procedure Code Under sec. 244 of the Cr. P. C. , a Magistrate, in summons cases is bound to take all such evidence as may be produced in support of the prosecution. Thus, in this case, the Magistrate was bound to record the evidence of all the six witnesses who were named in the police list. Of course thereafter he could use his discretion in taking such further evidence as appeared to him necessary. But he had on power to bar the police from producing further evidence after only three witnesses were examined, unless the police wanted to give up those witnesses. In this case it does not appear that the police gave up the remaining witnesses. The learned Magistrate was, therefore, not justified in dropping the proceedings without taking down the statement of all the witnesses given in the list. It was held in the case of Govind Sahai vs. Emperor (l), that the Magistrate conducing an inquiry under sec. 110 of the Criminal Procedure Code is bound to hear the witnesses whose list is sent up by the police along with the case. The language of sec. 252 which applies to warrant cases is almost the same as the language of sec. 244 (1) which applies to trial of summons cases, because in both these sections, the words "and take all such evidence as may be produced in support of the prosecution are used. The Magistrate in his explanation has not said under what provision of law, he was justified in smothering the case after recording the statements of only three out of six witnesses of the police list. He has given a very curious explanation that the order passed for discharge under sec. 199 Cr. P. C. is more or less an executive order and, therefore, he did not discuss the evidence in a judicial way, and the evidence put forward was so weak and useless for a case under sec. 107 that he did not consider it necessary to discuss it. He further says that sec. 107 proceedings are such that if once they are dropped, they can be taken up again if there is an apprehension of the breach of the peace. The learned Magistrate ought to correct his notion. Proceedings under sec. 107 are not altogether executive proceedings. They are judicial proceedings in which an appeal lies in case there is an order of binding over and there can be revision to higher courts in case of proceedings are dropped. The learned Magistrate should therefore, in future strictly follow the provisions of law given in the Criminal Procedure Code when making an inquiry in such cases.