P L D 1961 Dacca 122 (PLP)

"Seen the connected papers. It seems the opposite‑parties were Bargadar of the 1st party. As far as can be seen the petitioner has selected a ready procedure to have an adjudica tion of possession in a Criminal Court of a matter which appears to be a civil dispute. The petition is filed as there is no apprehension of breach of the peace at present." As against this order of the learned District Magistrate, the petitioner has come up to this Court in revision and a Rule was issued by this Court on ground No. 1 which runs as follows :‑ "For that the learned District Magistrate seriously erred in law in passing the impugned order without taking any evidence or holding any enquiry which is mandatory in view of provisions of section 117 of the Code of Criminal Procedure and as such the said order is liable to be set aside." Mr. M. A. Rab, who has appeared on behalf of the petitioner contends that the learned District Magistrate, committed a grave error in law by ordering the petition to be filed without holding any enquiry as provided by section 117, Cr. P. C. Section 107, subsection (1) reads as follows :‑ "Whenever a Presidancy Magistrate, District 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 tranquility, 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 manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix." Section 112 of the Code runs 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 section, he shall make an order in writing, setting forth of 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." In this case there is no dispute about the fact that the learned Magistrate took action under section 107 (1) on a police report in compliance with the provisions of the said subsection (1) of section 107 of the Code and he made a show‑cause order in writing and got it served upon the opposite‑parties in compliance with the provisions of section 112, Cr. P. C. Subsection (1) of section 117, Cr. P. C. lays down :‑ "When an order under section 112 has been read or explained under section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under section 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary." Subsection (2) of the said section lays down :‑ "Such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons‑cases ; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant‑cases, except that no charge need be framed." Thus according to subsection (1) of section 117 a Magistrate is bound to enquire into the truth of the information and it is not competent to a Magistrate to dispense with the enquiry as provided for by this section and to pass his order merely on perusing the papers and his assumption from something imaginary that there is no apprehension of the breach of 'the peace. This section clearly provides that a Magistrate should have held full judicial enquiry as it was a judicial proceeding as soon as the opposite‑parties appeared and showed cause against the pre liminary order passed by him on the 5th February 1960. The learned Magistrate should have directed both the parties to adduce evidence and he ought to have recorded the evidence if the parties adduced evidence and if they did not adduce any evidence the learned Magistrate should have decided the proceeding on the materials before him and passed the final order. The procedure which he ought to have adopted in this case has been clearly laid down in subsection (2) of section 117, Cr. P. C., that is, an enquiry in such a proceeding for keeping the peace must be made in the same way as in a trial of a summons case. Since the impugned order passed by the Magistrate was not in compliance with the provisions of subsections (1) and (2) of section 117 it is vitiated by illegality and as such it must be set aside. The result, therefore, is that the Rule is made absolute. The order dated the 16th April 1960 passed by the learned Magistrate is hereby set aside and he is directed to proceed with the case in accordance with law. I may, however, point out that there has not been proper compliance of the provisions of section 112 of the Code of Criminal Procedure and it is hoped that the learned District Magistrate will strictly comply with the provisions of that section and proceed with the case in accordance with law. K. B. A. Rule made absolute.