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IN THE HIGH COURT OF PATNA
C.P. Sinha, J.
Janardan Singh - Appellants
Vs.
Banarshi Singh and Ors. - Respondent
Cr. Rev. No. 218 of 1971
Decided On: 26.04.1971
CRIMINAL PROCEDURE CODE - SECTION 107 - DISCHARGE OF ACCUSED - LEGALITY - MAGISTRATE'S POWER TO DISCHARGE ACCUSED BEFORE ENQUIRY UNDER SECTION 117(1) - CIRCUMSTANCES IN WHICH DISCHARGE CAN BE MADE.
Fact of the Case:
The Magistrate, after issuing notice to the accused under Section 107 of the Code of Criminal Procedure, and receiving their show cause, adjourned the case several times for taking evidence in the enquiry to be held under Section 117(1). On the last date fixed for evidence, the Magistrate, instead of examining the witnesses present, heard the parties on the question of dropping the proceeding against four of the accused and discharged them relying on police reports and a High Court order in a revision petition. The petitioner challenged the legality of the Magistrate's order.
Finding of the Court:
The Magistrate's order discharging the accused was improper and against the law. The Magistrate was required to hold an enquiry under Section 117(1) of the Code of Criminal Procedure to determine whether the accused should be bound down. The police reports and the High Court order relied upon by the Magistrate were not relevant to the question of continuance of the 107 proceeding.
Issues: 1. Whether the Magistrate was justified in discharging the accused without holding an enquiry under Section 117(1) of the Code of Criminal Procedure? 2. Whether the police reports and the High Court order relied upon by the Magistrate were relevant to the question of continuance of the 107 proceeding?
Ratio Decidendi: 1. The Magistrate is required to hold an enquiry under Section 117(1) of the Code of Criminal Procedure to determine whether the accused should be bound down. 2. The police reports and the High Court order relied upon by the Magistrate were not relevant to the question of continuance of the 107 proceeding.
Final Decision: The Magistrate's order discharging the accused was quashed and the Magistrate was directed to continue the proceeding against the accused and dispose it of in accordance with law.
C.P. Sinha, J.
1. This revision is directed against the ORDER :dated 18.11.1970 in case No. 225 M of 1969 pending in the court of Mr. Z.H. Khan, Magistrate, First Class, Begusarai. This is a case under Section 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) between the present petitioner as the first party and present opposite party ( nos. 1 to 6) as the second party. Under the impugned ORDER :the Magistrate has discharged opposite party nos. 1 to 4 from the proceeding and directed the continuance of the proceeding against the remaining two (opposite party nos. 5 and 6). The relevant facts are as follows. The sub-divisional Magistrate, Begusarai received a police report on 27.6.1969 recommending action under Section 107 of the Code against the aforesaid six members of the opposite party. Being satisfied on that report that there was an apprehension of breach of the peace at the hands of those persons, he drew the proceeding under Section 107 of the Code against them on that very day i.e., 27.6.1959 calling upon them to show cause why they should not each be made to execute bond of Rs. 1000/- with two sureties of the like amount, to keep peace for a period of one year. The proceeding, in due course, was served upon those persons and they filed their show cause on 10.10.1969 when the Sub-divisional Magistrate transferred the case to the file of the above Magistrate Mr. Z.H. Khan for disposal. In the meanwhile on 19.7.1969 the first party filed a petition before the Sub-divisional Magistrate for taking action under Section 117(3) of the Code against the members of the second party on the allegations made therein. The Sub-divisional Magistrate referred that petition to the local police for enquiry and report. After necessary enquiry the police submitted the report in which they recommended for action under Section 117(3) against those persons. The parties were duly heard by the Magistrate on that report on 16.12.1969 and he directed the second party members to execute ad-interim bonds of Rs. 1000/- with two sureties of the like amount each to keep peace till the substantive proceeding has been disposed of. While recording this ORDER :, the Magistrate postponed the hearing of the substantive proceeding to 29.12.1969.
2. The second party challenged the above ORDER :of the Magistrate under Section 117(3) before the High Court in Criminal Revision no. 456 of 1970. That revision was allowed, on 16.4.1970, in favour of the present opposite party nos. 1 to 4 and dismissed in respect of the other two persons (opposite party nos. 5 and 6). The main reason which appears to have weighed with the learned Judge in allowing the revision in favour of those four persons was that they were railway employees at Lillooah in West Bengal and were likely to stay away from their village in connection with their employment and as such the ORDER :of the Magistrate against them was not proper.
3. On 23.7.1970 a petition was again filed by the first party for taking action under Section 117(3) of the Code against the opposite party. The Magistrate referred that petition to the local police for enquiry and report. In his report the Officer-in-charge recommended for taking ad-interim bonds from the opposite party. When this report was put up before the Magistrate on 18.9.1970, a prayer was made on behalf of the opposite party that the report made by the officer-in-charge should be verified by some higher police officer. Accordingly, the Magistrate referred the report to the Deputy Superintendent of Police for necessary verification. The Deputy Superintendent of Police, however, got the matter enquired into by his Inspector who sent his report dated 13.10.1970. In that report of the Police Inspector, which was duly endorsed by the Deputy Superintendent of Police, the recommendation was that the proceeding under Section 107/ 117(3) of the Code should be dropped against the four opposite party (present opposite party nos. 1 to
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