Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1971 Supreme(Pat) 19

IN THE HIGH COURT OF PATNA
M.P. Verma and A.N. Mukharji, JJ.
Hasibuddin and 39 Others - Appellants
Vs.
The State of Bihar - Respondent
Cr. Ref. No. 34 of 1969
Decided On: 11.02.1971

Advocates:
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Chandi Prasad and Kedar Nath Jha
For Respondents/Defendant: Mr. S.P. Jamuar

An order under Section 112 of the CrPC must contain the substance of the information received to be valid.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 112 - ORDER TO SHOW CAUSE - SUBSTANCE OF INFORMATION - NECESSITY - SECTION 112 OF THE CODE OF CRIMINAL PROCEDURE MANDATES THAT AN ORDER TO SHOW CAUSE UNDER SECTIONS 107, 108, 109, OR 110 MUST INCLUDE THE SUBSTANCE OF THE INFORMATION RECEIVED. FAILURE TO PROVIDE SUCH SUBSTANCE RENDERS THE ORDER DEFECTIVE AND LIABLE TO BE QUASHED.
Fact of the Case:

A Magistrate issued an order under Section 112 of the Code of Criminal Procedure (CrPC) against the petitioners, requiring them to show cause why they should not execute bonds for keeping peace for a year. The order did not provide the substance of the information received, prompting the petitioners to challenge it before the Sessions Judge and subsequently the High Court.
Finding of the Court:

The High Court held that the Magistrate's order was defective due to the absence of the substance of the information received. It emphasized the importance of providing the substance of the information to enable the accused to understand the allegations against them and prepare their defense.
Issues: Whether an order under Section 112 of the CrPC without providing the substance of the information received is valid.
Ratio Decidendi: The court relied on the mandatory language of Section 112 of the CrPC, which requires the Magistrate to set forth the substance of the information received in the order. It noted that the purpose of this requirement is to provide the accused with sufficient information to enable them to respond effectively to the allegations against them.
Final Decision: The High Court quashed the Magistrate's order and directed that a fresh proceeding be initiated in accordance with the law.

Judgement Key Points

Key Points: - An order under Section 112 of the Code of Criminal Procedure must contain the substance of the information received (!) (!) . - Failure to provide the substance of the information makes the order defective and liable to be quashed (!) (!) . - The substance must enable the accused to understand the allegations and prepare a defense (!) (!) . - The substance should specify the nature of the alleged breach of peace and the overt acts complained of (!) (!) . - The requirement is mandatory, as indicated by the use of "shall" in the section (!) . - The High Court quashed the order due to the absence of this substance (!) (!) . - The accused must be given sufficient information to respond effectively to the allegations (!) (!) . - Mere repetition of the sections of the Code is insufficient (!) . - Clarity on the specific allegations and the relevant legal provisions is necessary (!) (!) . - The judgment does not address the procedural consequences after the initial stage if the defect is noted later (!) (!) .

What is the requirement of an order under Section 112 of the Code of Criminal Procedure regarding the substance of information received?

What is the consequence if an order under Section 112 does not contain the substance of the information received?

What constitutes the substance of information required to be included in an order under Section 112?

JUDGMENT :

M.P. Verma, J.

1. A proceeding under Section 107 of the Code of Criminal Procedure was started against Hasibuddin and 39 others by Sri J.N. Prasad, Magistrate, First Class, Kisanganj (Purnea), on 1st May, 1969, when he perused a report of the Officer-in-charge of Pothia police station, dated the 28th April, 1969, and the recommendation of the Circle Inspector of Thakurganj dated the 28th April, 1969. He called upon the petitioners in the court below to show cause as to why they should not execute bonds of Rs. 2,000/-, with two sureties of the like amount each, for keeping peace for a period of one year. The cause was to be shown by the 28th May, 1969.

The petitioners did not show cause, but preferred a criminal revision before the learned Sessions Judge of Purnea on 18th June, 1969. The learned Sessions Judge heard both the parties, namely, the petitioners before him and the State, and, by his ORDER :dated the 27th September, 1969, he referred the matter to this Court for quashing the ORDER :of the learned Magistrate.

The matter came up for hearing before a learned Single Judge of this Court (the Hon'ble Mr. Justice Shambhu Prasad Singh), who found that there was no consistent view concerning the matter in dispute and so he referred it to a Division Bench and this is how this case has come up before us.

2. The main question to be decided in this reference is, whether an ORDER :of a Magistrate passed under Section 112 of the Code of Criminal Procedure, without giving the substance of the information received, should be allowed to stand or should be quashed. Section 112 reads as follows:

When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110 deems it necessary to require any person to show cause under such section, he shall make an ORDER :in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and, the number, character and class of sureties (if any) required.

Prima facie, the language of this section is imperative in character, because the word "shall" has been used. In the particular case under reference, the learned Magistrate, in his impugned ORDER :dated the 1st May, 1969, wrote as follows:--

Perused the report under Section 107 Cr.P.C. of O/C Pothia P.S. dated 28.4.69 and C.I. of Police, Thakurganj dated 28.4.69 for taking action under Section 107 Cr.P.C. against the O.Ps.

I, J.N. Prasad, Deputy Magistrate, 1st Class, am satisfied from the perusal of the above police report that there is serious apprehension of breach of peace from the side of opposite parties over long standing enmity with one Md. Yunush and thereby likely to disturb public tranquility.

Draw up proceedings u/s 107 Cr.P.C. against the opposite parties asking them to show, cause on 28-5-69 against the execution of bond of Rs. 2000/- with 2 sureties of the like amount each for keeping peace for a period of one year.

Obviously, in this ORDER :he has given no substance of the information which he received from the Police. The purpose of this Section is that, when a person is called upon to show cause, he must know the allegations against him as to why he is being called upon to execute the bond for keeping the peace. This ORDER :under Section 112 of the Code of Criminal Procedure has to cover so many sections like Section 109, 110 etc. and they are not offences, if it can be said so, of a similar nature. So, if the substance of the information is not given in the ORDER :, the person against whom such a notice is issued cannot be in a position to know whether he has to answer an allegation under Section 109 or Section 110 or any other section of the Code of Criminal Procedure. It is the well established principle of law that a party has to show cause or give his own answer to the allegation made against him and then only the Court will look into the whole matter. If the petitioners in the court below in the instant case had to give their ans

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