A Magistrate has no jurisdiction to pass a composite order under Section 112 and Section 117 (3) of the Code of Criminal Procedure.

Rajkishore Prasad, J.

1. This is a reference, Under Sec. 438 of the Code of Criminal Procedure, (hereinafter referred to as the Code), by the Second Additional Sessions Judge of Patna, recommending that order No. 8 dated the 3rd June, i960, of the Sub-divisional Magistrate of Barh, should be set aside.

2. The material portion of the impugned order is in these terms:

8. 3-6-60-F.P. has filed a petition. Heard the-parties lawyer. Draw proceeding Under Sec.107 Criminal Procedure Code against members of the O.P. asking them to execute a bond of Rs. 1000.00 with two sureties of like amount for a period of one year for maintaining good behaviour and an interim bond Under Sec.117 (3) Criminal Procedure Code.

3. The learned Judge, in his letter of reference, has discussed, both law and facts, in a very-clear and convincing manner and has given good legal reasons for quashing the said order. The reasons given by the learned Judge, for setting aside the order complained of, are:

(1) that in a proceeding Under Sec.107 of the Code the Magistrate had no jurisdiction to call upon the second. party to execute a bond for maintaining good behaviour;

2. that if an action Under Sec.117 (3) of the Code was contemplated to be taken by the Magistrate he should; have recorded his reasons- in-writing for taking such action; and.

3. that the Magistrate has acted illegally in passing a composite order Under Sec.112 and Under Sec.117 (3): of the Code as such an order is illegal.

4. No one appeared either in support of the reference or against it. On a consideration of the-reasons given by the learned Judge and the law on the subject, however, I find that the reference made by the learned Judge is well-founded and must be accepted.

5. The relevant Sections of the Code, which are necessary to be read for answering the reference are Sec.107 (j), Sec.113, Sec.117 (3), and, Proviso (a) to Sub-section (3) of Sec.117 of1. the Code. As we are here concerned only with Sec.107, I will deal: with it alone, omitting Section 108, 109 or no mentioned in Sec.112 of the Code.

6. Sub-section (t), Sec.107, of the Code, as far as material, provides. ... the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner hereinafter provided, Require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix.

7. Proviso (a) to Sub-section (3) of Sec.117, which alone is relevant here, says :

(a) no person against whom proceedings are not being taken Under Sec.108, Sec.109, or Section no, shall be directed to execute a bond for maintaining good behaviour.

8. It is manifest, therefore, from the plain language of Sub-section (i) of Sec.107, that the Magistrate, if he decides to proceed Under Sec.107, can require the person concerned to show cause why he should not be ordered to execute a bond for "keeping the peace"; and, not for "maintaining good behaviour". Proviso (a) to Sub-section (3) of Sec.117, further, makes the position absolutely clear by providing that no person, against whom proceedings are not being taken Under Sec.108, Sec.109 or Section no, shall be directed to execute a bond for "maintaining good behaviour". It is plain, therefore, that in a proceeding taken Under Sec.107, the Magistrate has no jurisdiction to ask the person proceeded against to execute a bond for "maintaining good behaviour". He can require him to show cause why he should not be ordered to execute a bond for "keeping the -peace". The Magistrate, therefore, in the instant case, acted illegally, in contravention of Sec.107 (1) and Proviso (a) to Sec.117 (3), in asking the opposite part} before him, who were the petitioners in the Court below, to execute a bond I for "maintaining good behaviour".

9. Sub-section (1) of Sec.107 provides that if the Magistrate wants to proceed thereunder he may proceed "in manner hereinafter provided"