P L D 1958 (W (PLP)

(b) Criminal Procedure Code (V of 1898), S. 439‑Additional ground for revision, not raised in Courts below, requiring inquiry on facts‑Not allowed to be raised in arguments. (c) Criminal Procedure Code (V of 1898), S. 107 (2) Temporary presence within local limits sufficient to give Magistrate jurisdiction to deal with persons. Section 107 (2), Cr. P. C. does not say that the persons to be proceeded against under Chapter VIII, Cr. P. C. must be residing within the local limits of the Magistrate's jurisdiction. The section makes no mention of residence. What the section requires is that such persons should be within the local limits. Even temporary presence within the jurisdiction at the time the Magistrate receives information, and commences proceedings would be sufficient to give jurisdiction to the Magistrate. Abdul Ghani for Applicants. This is a revision application under S. 439, Cr. P. C. against the order of the District Magistrate, Karachi, dismissing the appeal of the applicants filed against the order of the XVIth A. C. M. Karachi directing them to furnish surety in the sum of Rs. 1,000 and execute a bond in the like amount for keeping peace for six months or in default to be committed to prison for the said period. These proceedings arose from a dispute between husband and wife. Shafique applicant is married to Mst. Inayat Begum who is daughter of the complainant Inayatullah. The marriage did not prove to be a happy one, with the result that Inayat Begum left her husband's house and went out to that of her parents. Subsequently she filed a suit for divorce. The prosecu tion case was that in order to force her to withdraw the suit, the applicants resorted to all sorts of ways including assaulting and beating and issuing all kinds of threats. Inayatullah there fore proceeded against the applicants under section 107, Cr. P. C. The learned A. C. M. found the allegation to be true and then passed an order calling upon the applicants to furnish surety. Against this order, the applicants went in appeal to the Court of the District Magistrate, who, by his order dated 11‑8‑1956, dismissed the same. It is against this order that the present application has been filed. I have heard the learned counsel on either side and I see no reason whatsoever to interfere with the order of the District Magistrate. The learned counsel for the applicants at first contended that the learned Magistrate has acted illegally in that he has not examined the applicants under section 242, Cr. P. C. But sub sequently he dropped the contention conceding that section 242 does not apply to proceedings under section 107, Cr. P. C. He then contended that the learned Magistrate has acted illegally in that he has not complied with the provisions of section 342, Cr. P. C. The learned counsel has cited a case reported in 1954 Cr. L J

230. But this case does not deal with the point whether or not section 342 is applicable to proceed ings under S. 107, Cr. P. C. That ruling deals with an offence punishable under same section of the Penal Code. On the other hand there is a decision reported in Binode Behari v. Emperor (A I R 1924 Cal. 392), where the learned Judges of Calcutta High Court have held that S. 342, Cr. P. C. does not apply to proceed ings under Chapter VIII of the Criminal Procedure Code. This decision is based on the ground that the person proceeded against under S. 107 is not an accused person whereas S. 342, Cr. P. C. applies to a persons accused of an offence. This decision has been referred to with approval in the decision reported in Ibrahim and others v. Emperor (A I R 1933 Sind 49 at p.50) wherein, the learned Judges have gravely doubted whether a person against whom proceedings under Chapter VIII have been taken is an accused person. I, with respect accept the decisions of the above Courts as correct for, according to me, what is required to be done under S. 342, Cr. P. C. in the case of an accused person, is done under S. 112, Cr. P. C. in the case of the person proceeded against under Chapter VIII of the Criminal Procedure Code, the purpose underlying both being the same, namely to enable the person to explain the circumstances appearing against him. The learned counsel for the applicant has raised a new point not raised by him either in the trial Court or in that of appeal. He has not mentioned it even in his memo of this revision application. The point is that the trial Court has no jurisdiction to initiate the proceedings against the applicants, as they were not within the local limits of his jurisdiction. It being x question, of fact, requires investigation and it is not for a Court to embark on such investigation when dealing with a revision application. If there was any substance in such allegations there was nothing to prevent the learned counsel for the applicants to raise the point before the proceeding started. At present there is no B material on record to show that the learned Magistrate had no local jurisdiction. There is no evidence to show that the applicants were not within the local limits of the Magistrate's jurisdiction when the proceedings were instituted. The learned counsel argued that the applicants at the time the proceedings were instituted, were not residing within the local limits of the Magistrate's jurisdiction. In the first place he has not been able to substantiate this assertion. But, even if it be correct, it does not advance his case, for S. 107 (2), Cr. P. C. does not say that the persons to be proceeded against under Chapter VIII Cr. P. C. must be residing within the local limits of the Magis trate's jurisdiction. The section makes no mention of residence. What the section requires is that such persons should be within the local limits. Even temporary presence within the jurisdic tion at the time the Magistrate receives information, and commences proceedings would be sufficient to give jurisdiction to the Magistrate. Had this point been raised at the proper stage, the prosecution would have brought material on record to prove that the applicants were within the local limits of the Magistrate's jurisdiction at the relevant time. As said above this point has been raised for the first time in this Court and that too at the stage of arguments. In the result I dismiss the application and maintain the orders of the Courts below. A. H. Application dismissed.