The duty of the Magistrate to satisfy themselves on the facts before initiating a proceeding under Sec.107 of the Criminal Procedure Code, and the improper nature of drawing up such proceedings lightly without sufficient justification.

Muneshwari Sahay, J.

1. This application is directed for quashing of the proceeding under Sec.107 of the Code of criminal Procedure drawn up against the petitioners on 31-5-79 by the Sub Divisional Magistrate, Barh. On 31-5-79 the learned Magistrate recorded an order that he was satisfied on the report of the officer-in-charge of Barh P. S. that assauit had taken place between the parties on account of enmity which existed between them and Barh P. S. Case No.12 (5) 79 had been instituted in that connection and that he was satisfied from the report that at any time rioting or any other unpleasant incident could take place between the parties. Therefore, both parties were directed to show cause as to why they should not furnish bonds of Rs 5000 each with two sureties of the like amount each for keeping the peace for a period of one year.

2. The petitioners contend that the order does not set forth the substance of the information received by the learned Magistrate on which he decided to draw up the proceeding under Sec.107 of the Code of Criminal Procedure against them. The petitioners contend further that when a case of substantial offence for assault is pending against them, there cannot be any justification for drawing up a proceeding against the petitioners under Sec.107 of the Code of criminal Procedure. Learned Counsel for the petitioners has pointed out that the notices issued to the petitioners in pursuance of the impugned order simply refers to Barh P. S. Case No.12 (5)/791 under Secs.307 and 304 of the Indian penal Code. The notice also does not mention any other overt act against the petitioners justifying the initiation of the proceeding under Sec.107 of the Code of Criminal Procedure against them.

3. Learned Counsel for the State has submitted that he has some difficulty in supporting the impugned order inasmuch as some assault had taken place between the parties for which a substantive case has been instituted, which is pending. In fact, it is that very incident of assault which has led to the initiation of the proceeding under Sec.107 of the code of Criminal Procedure against the petitioners Learned Counsel points out that there is no mention of any other overt act in the police report or in the impugned order against the petitioners which could justify the drawing up of the proceeding.

4. I am inclined to agree with the submissions made in this case on behalf of the learned Counsel for the State. Learned counsel for the petitioners states that there may not be any legal bar to the initiation of a proceeding under Sec.107 Criminal Procedure Code when the parties have already cashed and a case for assault was actually pending against them. But it is certainly highly improper to draw up a proceeding under Sec.107, criminal Procedure Code when the only material which could justify the proceeding, is the assault alleged to have been committed by the petitioners for which thay have been prosecuted. I think, the learned Magistrate would have been well advised to insist upon some more facts which could justify the initiation of a proceeding under Sec.107, Criminal procedure Code against the parties. I am getting the impression that such proceeding is drawn up very lightly by the Magistrates without the application of mind to the facts of the case. The orders drawing up the proceeding, I have found are mostly typed or printed in which some blank space has been left to fill in the name of the P. S. , the date for showing cause and the names of party or parties against whom the proceeding is to be drawn up. Some space is also left blank to mention the facts gathered from the police report. It is in this blank space that in the instant case it is written in pen that an assault has taken place between the parties due to enmity, as a result of which a case had been registered on 12-7-79. The fact that the state of tension exists, that the Magistrate is satisfied that riot or unpleasant incident can. take place at any t