P L D 1965 (W (PLP)

2. During the pendency of these proceedings, while Habib was lodged in the lock‑up of the Civil Lines Police Station Lyallpur, the Senior Superintendent of Police paid an inspection visit and interviewed the various bad characters there. Habib complained to him that he had been falsely implicated by Ch. Imam Ali, A. S. I., under section 109/55, Criminal Procedure Code. The S. S. P. was satisfied with the representation of Habib and recommended to the District Magistrate that the security bond as ordered by Malik Bashir Ahmad for the good behaviour of Habib be cancelled under section 125 of the Criminal Procedure Code. This resulted in the order of the District Magistrate dated the 31st of March 1964, to the following effect:‑ "Superintendent of Police, Lyallpur has requested that the bond executed by Habib and his surety under section 109, Cr. P. C. may be cancelled under section 125, Cr. P. C. During the last quarterly inspection of Jail, Habib had represented to me and the S. P. that he had been falsely implicated by the Police in the proceedings under section 55/109, Cr. P. C. The S. P. thereupon conducted an enquiry and found that Habib was wrongly hauled up by A. S. I., P. S. People's Colony. I am satisfied that accused Habib was wrongly implicated in this case and accordingly cancel the bond executed by him for keeping the peace by the order of the learned Magistrate dated 28‑11‑1963. Severe disciplinary action is called for against the police officer concerned. Superintendent of Police is requested, to take departmental action against him."

3. The petitioner has brought the present application under section 561‑A of the Code of Criminal Procedure for quashment of that part of the order of the District Magistrate wherein he has expressed his satisfaction that accused Habib was wrongly implicated. Besides defending the petitioner's action for challaning Habib under section 109/55, Cr. P. C. by reference to the history of Habib as a previous convict, with convictions to his credit, four for pick pocketing and one for burgalary, the petition also assails the impugned part of the District Magistrate's order on the ground that it was made without giving the petitioner an opportunity to be heard before making such a damaging remark against him which is likely to prejudice the departmental inquiry that has been ordered against him, and might as well spoil his career.

4. The application was opposed by the learned Additional Advocate‑General before me on' the ground that the order of the learned District Magistrate under section 125, Cr. P. Code was made by him in an executive capacity and not as a Court and it is, therefore, not amenable to the jurisdiction of this Court for quashment of any part of it under section 561‑A of the Code of Criminal Procedure. He has referred me to two authorities in support of his contention which may be considered. The first is Ahmad Din v. Rijha Singh (A I R 1950 All. 652). In this case, the City Magistrate, Lucknow, on receipt of an application by Rijha Singh, a refugee, which was forwarded to him by the District Magistrate, complaining that Ahmad Din and his associates had wrongfully taken possession of a stall in execution of a decree by a civil Court which in fact was not the subject‑matter of the decree and that there was thus apprehension of the breach of the peace, called for an immediate report of the police and after obtaining it gave the following directions to the police: "From this report it is clear that Ahmad Din has played a trick. He must immediately restore the stall to Rijha Singh. If he does not listen, I shall take it that he is bent upon doing a wrongful act likely to disturb the public tranquillity. In that case, the trouble‑maker should be prosecuted under section 107/117, Criminal Procedure Code, and in case of emergency he should be arrested under section 151, Criminal P. C. and sent to me for bail. Along with that, a report under section 145, Criminal Procedure Code can also be sent to me." Ahmad Din applied to the High Court for quashment of this order and it was held by Chandiramani, J. that the order was in the nature of advice or instructions as to what might happen if the action proposed by the City Magistrate were taken and the advice not accepted by Ahmad Din. There was no sign in the order anywhere that the action was taken by the City Magistrate as a Court, as the order of the City Magistrate was neither made by him in his capacity as a Court nor in the course of judicial proceedings. It did not call for any interference under section 561‑A, regardless of the fact whether the order was proper or improper. In the second case, Emperor v. Sita Ram (I L R 39 All, 466), Sita Ram was ordered by a Magistrate of the' First Class to give security to keep the peace under section 197, Criminal Procedure Code. He presented a petition to the District Magistrate, asking him to exercise his powers to cancel the bond under section 125 of the Code of Criminal Procedure. The District Magistrate, without hearing the applicant or his Pleader, made the following order: "There is no appeal to me from section 107 of the Code of Criminal Procedure. Application is made, however, under section

125. The lower Court has found certain allegations made against the applicants to be true. These allegations justify action under section 107 of the Code of Criminal Procedure. I decline therefore to take action under section 125 of the Code of Criminal Procedure. The application is rejected." In the application before the High Court it was contended that the District Magistrate should not have disposed of the application without hearing the applicant or his Pleader. In dealing with this objection, their Lordships Richards, C. J. and Banerji, J. observed as follows:‑ "It is quite unnecessary for us to decide whether or not it was actually illegal for the learned District Magistrate to make his order without hearing the applicant or a Pleader on his behalf. At the same time we think that it was clearly open to the applicant to ask the District Magistrate to exercise his powers under section 125 to cancel the bond, and that as a general practice either the applicant or his Pleader should be heard before the application is rejected. Reading the matters mentioned in the petition that was made to the District Magistrate, it is quite clear that the application was in reality an appeal from the order of the Magistrate of the First Class, directing the applicant to furnish security. Section 125 provides that the District Magistrate may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under the Chapter therein referred to. An appeal is expressly allowed by the Code against an order of the Magistrate directing a party to give security for good behaviour. No such appeal is given against an order directing security to be given to keep the peace. It seems to us, therefore, that it could not possibly be the intention of the Legislature to give what would be nothing short of a right of appeal under section 125 when it refrained from expressly doing so, as .it did in the case of security for good behaviour. The order of the District Magistrate rejecting the application was, in our opinion, right. There was no allegation that there had been any change in the circumstances between the time that the Magistrate made his order and the application to the District Magistrate. The only thing that can be said against the District Magistrate's order is that it was made without giving the applicant or his Pleader an opportunity of being heard. If this view which we have just expressed to be correct, we think that applications for revision made to the High Court in respect of orders to give security to keep the peace ought not to be rejected solely on the ground that the applicant has not first made an application to the District Magistrate. The High Court is the only Court which can interfere in revision in a matter like this."

5. It would appear that none of these two cases is in point for decision of the application before me to 'support the contention of the learned Additional Advocate‑General that the order made by the District Magistrate under section 125, Criminal Procedure Code, containing the portion impugned in the application being an executive order and not made in his capacity as a Court is not liable to quashment under the provisions of section 561‑A of the Code of Criminal Procedure. In the first case, Ahmad Din v. Rija Singh the order challenged before the High Court was found to be of the nature of instructions to the Sub‑Inspector of Police and no action had been taken or ordered to be taken. Interference was, therefore, refused. In the second case, Emperor v. Sita Ram the District Magistrate's order refusing to interfere under section 125 was held to be right not because it was an executive order, but because the District Magistrate had considered that the application under section 125 was, in the nature of an appeal, calling for exercise of his powers in reviewing the data on which the applicant before him had been called upon to furnish security. An appeal against an order for furnishing security to keep the peace was not permissible under section 406 of the Code of Criminal Procedure, 1898, as it then stood, unamended by the subsequent change brought by Act XVIII of 1923 in the aforesaid section, whereby an appeal has been provided both against orders for giving security for keeping the peace and for good behaviour. Their Lordships in this case referred approvingly to the objection against the District Magistrate's order that it was made without giving the applicant or his Pleader an opportunity of being heard. They rejected the application leaving it open for the petitioner to challenge the original order of the Magistrate in revision before the High Court or to make an application to the District Magistrate under section 125, i.e., not asking for the vacation of the previous order of the Magistrate because it was wrong but to ask for cancellation of its continued operation as it was no longer necessary.

6. On a careful consideration of the matter I am of the opinion that an order under section 125 of the Code of Criminal Procedure made by the District Magistrate is recorded b him as a Court in proceedings for prevention of offence contained in Part IV, Chapter VIII of the Code of Criminal Procedure, which proceedings have invariably been held to be of the nature of quasi criminal proceedings. It would be useful to reproduce here the wordings of section 125: "The District Magistrate may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by order of any Court in his district, not' superior to his Court." It will be seen that the word "Court" appears twice in this section, one in reference to the Court which has made the order for the furnishing of the bond for keeping the peace or for good behaviour and which is sought to be cancelled, and the second in reference to his own Court in relation to the superior Court above it. The order under section 125 obviously has to be made not on the executive whim of the District Magistrate to free an accused person from his bond or not to free him, but on a judicious weighment of the various considerations that will govern the District Magistrate's decision on the matter. I would therefore hold that the order made by the District Magistrate in this case under section 125 is amenable to the jurisdiction of this Court for interference.

7. The next question for determination is whether the remark of the learned District Magistrate that "I am satisfied that the accused Habib was wrongly implicated in this case" should be quashed or not. I have no hesitation in answering this question to the affirmative. The remark casts a serious reflection on the conduct of the petitioner in his capacity as an Assistant Sub‑Inspector of Police in the discharge of his duties in connection wit Habib's case and should not have been made without providing him with an opportunity of being heard before it was made. The remark is, therefore, hit by the maxim: audi alteram partem (No man shall be condemned unheard). In the case of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), their Lordships of the Supreme Court, in describing this principle, sated as follows:‑ "The rule of justice embodied in the maxim: audi alteram partem: "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the' dispute. As a just decision in such controversies is possible only‑if the parties are given the opportunity of being heard, there can be .as regards the right of hearing, no difference between proceeding which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form." Again, it appears to me that the impugned remark contained in the order was made merely on the report of the S. S. P. which seems to have furnished the basis for the subjective satisfaction of the District Magistrate for agreeing with that opinion. The learned counsel for the petitioner has made a legitimate grievance of the fact that even the original file of the case was not summoned by the District Magistrate for examination which contained Habib's own admission to be bound down, besides the statements of the prosecution witnesses including the petitioner, which supported the action of the petitioner. In the circumstances, I directed that the words appearing in the order, namely: "am satisfied that Habib was wrongly implicated in this case and" shall be expunged from the order of the District, Magistrate so that they are completely disregarded. The departmental inquiry ordered against the petitioner will, of course, proceed on its own merits. K. B. A. Petition accepted.