HANIF SHEIKH Vs. JABANI MANDAL

JUDGEMENT

(1.) THE form of the order made by the District Magistrate in this case is improper. If he thought that it was necessary, in order to prevent a breach of the peace, to take proceedings under Section 107, Criminal Procedure Code, against the petitioners he should have himself drawn up such proceedings and he might then have transferred the case to a Subordinate Magistrate for hearing. But he should not, as he has done, direct proceedings to be drawn up by a Subordinate Magistrate, nor should the Subordinate Magistrate draw up proceedings merely because the District Magistrate has ordered him to do so. He has full power under Section 107, Criminal Procedure Code, to take action under that section when he thinks it is necessary to do so to prevent a breach of the peace. But in deciding as to the necessity for action he must come to a conclusion of his own accord on the materials before him and act accordingly.

(2.) WE accordingly set aside the order of the District Magistrate passed on the 3 of December 1922, directing proceedings under Section 107, Criminal Procedure Code to be drawn up by the Sub-Divisional Magistrate against the petitioners. This order will be no bar to either the District Magistrate or the Sub-Divisional Magistrate drawing up proceedings against the petitioners, should they think it necessary to do so in order to prevent a breach of the peace.