1962 Supreme(All) 12

IN THE HIGH COURT OF ALLAHABAD
Jagdish Sahai and T. Ramabhadran, JJ.
ZAHIR AHMAD - Appellant
Versus
GANGA PRASAD, A.S.D.M., BALLIA - Respondents
Criminal Misc. Case 2788 Of 1961
Decided On : 01/22/1962

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 112 - MANDATORY - SECTION 114 - PROVISO - MANDATORY - WARRANT OF ARREST - ILLEGAL - HABEAS CORPUS - MAINTAINABLE - BAIL - NO BAR.

Fact of the Case:

The petitioner, Zahir Ahmad, was proceeded against under Section 107 of the Code of Criminal Procedure (CrPC) for being likely to commit a breach of peace. The Magistrate, Sri Ganga Prasad, issued notices along with warrants of arrest to the petitioner and others who were being proceeded against along with him, without passing 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 was to be in force, and the number, character, and class of sureties required as provided for in Section 112 of the CrPC. The petitioner challenged the legality of the proceedings and the issuance of the warrant of arrest, contending that the Magistrate failed to comply with the mandatory provisions of Sections 112 and 114 of the CrPC.

Finding of the Court:

The Court held that the provisions of Section 112 of the CrPC are mandatory and not merely directory in nature, and their disregard cannot be treated as a mere irregularity. The Court further held that the provisions of the proviso to Section 114 of the CrPC, which allows the Magistrate to issue a warrant of arrest in certain circumstances, are also mandatory, and the Magistrate must record an order in writing showing his satisfaction for the step that he has taken. In the present case, the Magistrate failed to comply with the mandatory provisions of both Sections 112 and 114 of the CrPC, rendering the proceedings illegal.

Issues: 1. Whether the provisions of Section 112 of the CrPC are mandatory or directory? 2. Whether the provisions of the proviso to Section 114 of the CrPC are mandatory or directory? 3. Whether the issuance of a warrant of arrest without complying with the mandatory provisions of Sections 112 and 114 of the CrPC is illegal? 4. Whether a person who has been granted bail can maintain a petition for habeas corpus challenging the legality of the proceedings against him?

Ratio Decidendi: 1. The Court held that the provisions of Section 112 of the CrPC are mandatory and not merely directory, as they set forth the specific requirements that must be met before an order can be passed under Section 112. The Court relied on the scheme of Chapter VIII of the CrPC, which contemplates a specific procedure for initiating proceedings under Sections 107, 108, 109, and 110, and the language of Section 112 itself, which provides that the Magistrate "shall" make an order in writing setting forth the required information. 2. The Court also held that the provisions of the proviso to Section 114 of the CrPC are mandatory, as they impose a condition precedent to the exercise of the power to issue a warrant of arrest. The Court reasoned that the proviso is meant to curtail the scope of the enacting clause, and therefore, it must be strictly construed. The Court further held that recording the reasons in writing is a condition precedent to the exercise of the power conferred by the proviso. 3. The Court held that the issuance of a warrant of arrest without complying with the mandatory provisions of Sections 112 and 114 of the CrPC is illegal. The Court reasoned that the disregard of these provisions violates the fundamental principles of natural justice and fair play, and undermines the rule of law. 4. The Court held that a person who has been granted bail can maintain a petition for habeas corpus challenging the legality of the proceedings against him. The Court relied on the fact that habeas corpus is a fundamental right guaranteed under Article 226 of the Constitution of India, and that it is available to challenge any form of illegal detention, including detention pursuant to a warrant of arrest issued in violation of the mandatory provisions of the CrPC.

Final Decision: The Court dismissed the petitioner's petition for habeas corpus, holding that the petitioner had not made out a case for the grant of prayers made by him. However, the Court directed the trial court to send the record of the case back to the court forthwith.