LAXMILAL Vs. BHERULAL

JUDGEMENT

(1.) THIS reference comes on the report of the learned Sessions Judge, Udaipur, dated 30-9-1957.

(2.) THE facts giving rise to it are that one Bherulal presented an application in the court of the Magistrate First Class, Udaipur, on 23rd October, 1957, against five persons for taking proceedings against them under Section 107 of the Criminal procedure Code. On 26-11-1956, the Magistrate passed an order under Section 112, Cr. P. C. and directed summonses to issue against the opposite party along with a copy of the said order. During the course of the proceedings, he passed another order on 24-4-1957, under Section 117 (3) directing the persons, in respect of whom the order under section 112, Cr. P. C. was passed, to execute a bond with a surety to the tune of rs. 501/- each for keeping peace, pending the conclusion of the enquiry. Against this order, the non-petitioners filed a revision application in the Court of the learned Sessions Judge. The learned Judge has reported that the order passed by the Magistrate on 24-41957, is illegal and therefore it should be set aside. According to the learned sessions Judge, the Magistrate had not commenced the enquiry by 24-4-1957, that an order under Section 117 (3), Cr. P. C. could be passed only on the commencement of the enquiry and therefore the said order was illegal.

(3.) NEITHER party has cared to appear in this Court. Learned Deputy Government advocate opposes the reference and I think rightly too. It appears that the learned sessions Judge did not apply his mind to the explanation which was made by the magistrate under Rule 80, Criminal Rules. In that report it has been mentioned that his order under Section 112 dated 26-11-1956, was served on all the non-petitioners along with the summonses before 17-12-1956. Thereafter, some of the non-petitioners made their appearance in person, while others put in their appearance through their counsel. This explanation of the magistrate is supported by the orders which have been passed by him from time to time. It appears that after 17-12-1956, adjournments were given mostly at the request of the non-petitioners. I may refer to the order sheet of 3-4-1957, in which it has been clearly mentioned that the petitioner, the non-petitioner, Laxmi Lal and counsel for the remaining non-petitioners were present, that the counsel for the non-petitioners requested the Court that their reply was not ready and therefore they should be given an adjournment. It further appears from the order sheets that the case was again adjourned for 9-4-1957, 20-4-1957, and lastly for 24-4-1957, on the last date, the petitioner again requested the Court that the non-petitioners were threatening him with violence and that unless they were bound down, there was a danger about the breach of peace. The Magistrate took that request into consideration and after he had applied his mind, he passed the order which is sought to be impugned by the non-petitioners.