The proceedings under S.107, Cr.P.C. are valid even if a Magistrate relies on statements made under S.202, Cr.P.C.

1. : - By his order dated 8-8-1975 Hon. H.N. Seth, J. has referred the following question to a Division Bench:
"Whether the proceedings under S.107(1) of the Code of Criminal Procedure get vitiated merely because while issuing process under S.107(1) the Magistrate acts upon the statement of a party and its witness, purporting to have been recorded under S.202, Cr.P.C.?"
The facts leading to this reference may be briefly stated thus: One Karan Singh moved an application under S.107/117 of the Code of Criminal Procedure against Het Ram and others in which he alleged that the opposite parties had formed a group against him and had threatened him with violence and therefore there was likelihood of a breach of the peace. The Magistrate called for a report from the police and the report submitted by the police was that there was no such apprehension. Thereupon Karan Singh came forward with the allegation that the report of the police was incorrect, and he offered to produce evidence in support of his allegations. The Magistrate, therefore, proceeded to record the statement of Karan Singh applicant and one of his witnesses, namely, Jagannath, purporting to no so under the provisions of S.202 of the Code of Criminal Procedure . After recording this evidence, the Magistrate drew up a formal order requiring the opposite parties to show cause as to why they should not be ordered to execute a bond in the sum of Rs. 1,000 each with one surety. One of the opposite parties, namely, Het Ram did not appear but sent an application with a medical certificate for exemption. The Magistrate rejected this application and directed that a warrant of arrest be issued against him. A revision was filed against this order and also against the order summoning the opposite parties. The learned Additional District Magistrate (Judicial), Mathura relying on a ruling reported as Kesri v. Angna (1966 All WR (HC) 774) held that the procedure adopted by the Magistrate was illegal and unwarranted by law. The Additional District Magistrate (Judicial) therefore, came to the conclusion that the order summoning the opposite parties under S.107, Cr.P.C. after recording the evidence under S.202 of the Code of Criminal Procedure was illegal. He has referred the matter to this court with a recommendation that the orders of the Magistrate dated 15-9-1972 and 25-11-1972 be set aside. This reference came up for hearing before Hon. H.N. Seth, J., who has referred the aforesaid question, which has now come up before us for opinion.

2. The relevant portion of S.107 of the old Criminal Procedure Code may be reproduced as follows: -
'"Whenever a Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate, if in his opinion there is sufficient ground for proceeding may, in the manner hereinafter provided......"
A perusal of this provision of law will make it clear that a certain class of Magistrate, has been given a power to draw proceedings under S.107, Cr.P.C. against a person who is likely to commit a breach of the peace on getting information. The Code of Criminal Procedure or S.107, Cr.P.C. does not anywhere lay down from what source or in what manner this information should reach the Magistrate. In the case referred to above, the matter come up before this Court in similar circumstances and the opinion expressed in that case was that S.202 had no application to such a case. If was observed that it was open to the Magistrate to hold