A Magistrate can only pass an order under Section 117(3) of the Code of Criminal Procedure after making some inquiry and giving the person against whom the order is being passed an opportunity to show cause.

B.D. Singh, J.

This application by the 13 petitioners under Sections 435, 439 and 561 A of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is directed against the ORDER :dated the 8th of September, 1969 passed by the Magistrate under Section 117 (3) of the Code in case no. 265M of 1969. In the said proceeding the petitioners are the members of the second party whereas the opposite party are the members of the first party.

2. In ORDER :to appreciate the point involved in this application, it will be necessary to state briefly the facts. On 15.6.1969 a report was submitted by the Sub-Inspector of Surajgarha police station for action under Sections 107 and 117 (3) of the Code against both the parties. On 18.6.1969 the Sub-divisional Magistrate drew up a proceeding under Section 107 of the Code against both the parties. Both parties showed cause on the 14th July, 1969. On the 29th August, 1969, the petitioners alleged to have assaulted the opposite party and others. Three witnesses were examined on behalf of the opposite party on 5th August 1969, 16th August, 1969, and the 26th August, 1969. On the 5th September, 1969 opposite party filed a petition before the Sub-divisional Magistrate for taking ad interim bond from the petitioners under Section 117 (3) of the Code. On the 8th September, 1969, the Magistrate passed the impugned ORDER :, the relevant position of which reads as:

"From the perusal of the petition and hearing of the lawyers, it appears there has been an incident in which the O. Ps. are alleged to have assaulted the 1st party. This shows that there might be serious breach of peace during the course of enquiry in future, I, therefore, feel that immediate measures are necessary for the prevention of breach of the peace or the commission of any offence.

I, therefore, direct the members of the opposite party to execute a bond of Rs.1000/- with two sureties of like amount for keeping the peace and maintaining good behaviour until the conclusion of the enquiry."

3. Mr. Arun Bihari Mathur, learned counsel appearing on behalf of the petitioners has challenged the impugned ORDER :, and has raised the following points for consideration by this Court.

(i) The learned Magistrate erred in directing the petitioners to execute ad interim bond without being satisfied that it was necessary in the instant case to take immediate measures, and

(ii) He erred in taking into account an incident which happened on the 29th August, 1969, regarding the assault in the impugned ORDER :without giving the petitioners an opportunity to show cause for the same.

4. I will take up for consideration point no. (i) first. Learned counsel in ORDER :to find support to his contention on this point has referred to a Bench decision of this Court in (1) Jagdish Prasad Verma V. The State (A.I. R. 1957 Patna. 106) where Banerji and Kanhaiya Singh, JJ., while dealing with the provisions contained in Sections- 112 and 117 (3) of the Code observed that it is only when the person is present in Court or has been bought before the Court, that a Magistrate can take. into consideration whether circumstances do exist for taking immediate measures and, when he is fully satisfied that such circumstances do exist, then only he can direct the execution of an ad interim bond, but before taking recourse to Section 117 (3) he has to put his reason in writing. It is Manifestly dear that Section 112 and Section 117 provide two different procedures for two different ends and, therefore, a Magistrate has no jurisdiction to pass an ORDER :under Section 117 (3) along with one under Section 112. An emergency ORDER :under Section 117 (3) can only be made when the Magistrate has started enquire into the truth of the information under Section 117(1), and, in the course of that enquiry, he considers that immediate measures are necessary. An ORDER :made under Section 117(3) is certainly bad if it is not accompanied by reasons recorded in writing why the Magistrat