P L D 1954 Azad J (PLP)

NIAZ AHMAD, J.‑This is a reference under the pro visions of section 438 Criminal Procedure Code by the learned Sessions Judge, Mirpur, in which he recommends that an order under section 117 (3) Criminal Procedure Code, dated 20th December, 1953, passed against Comrade Maqbool by the District Magistrate of Mirpur should be set aside on the ground that the order does not satisfy the provisions of that section. I have gone through the record and have heard the Government Advocate. It appears that the District Magistrate proceeded to take action against Comrade Maqbool on the basis of a police report summarising speech made by him on 10th December, 1953. I have not before me as I should have had a copy of the police report on which the District Magistrate has taken action under section 112 Criminal Procedure Code. The District Magistrate did not call the Police Officer in the witness box. Ordinarily the Magistrate should have recorded the evidence on the oath of the Police Officer concerned to verify as it were the applica tion as a complaint is verified. In this case no application in writing was made to the District Magistrate and he appears to have proceeded on a verbal request of some Police Officer. The District Magistrate has made reference to portions of the accused's speech in his order passed under section 112 Criminal Procedure. It is not possible to judge the possible effect of a speech on the audience unless the speech is read in its entirety. The District Magistrate has selected a few sentences from the whole speech and proceeded to take action against the accused. It is well settled law that in such cases the speech has to be read as a whole in a fair, free and liberal spirit. Too much stress should not be laid on isolated sentences even if they are couched in intemperate or objectionable language. The trend of the entire speech must be judicially weighed in the circumstances of the case. I agree with the learned Sessions judge that the speech of the petitioner was neither so violent or seditious nor made to a disorderly and excited mob which was bent upon taking law into their hands. Having carefully considered the order of the District Magistrate, I have no hesitation in saying that there was not sufficient material before the District Magistrate to justify the order. It is also clear from the record that the order under section 117 (3) Criminal Procedure Code was passed prema turely. The section clearly requires that the order under section 112 Criminal Procedure Code should be read and explained to the accused and this should be done before the order under section 117 (3) Criminal Procedure Code is passed. According to the Code there should be one order under section 112 Criminal Procedure Code and another separate order under section 117 (3) Criminal Procedure Code. This section clearly contemplates that the order under section 117 (3) shall be passed after the order under section 112 has been made and read out or explained to the accused under section 113 Criminal Procedure Code, In this case the order passed under section 112 Criminal Procedure Code had not been read ' or explained to the accused when the order under section 117 (3) was passed. Moreover the record does not reveal any such emergency as section 117 (3) Criminal Procedure Code requires. It appears that this aspect of the case the‑emergency and the necessary measures to meet the emergency‑has not been fully considered by the District Magistrate. He should not have been satisfied with a verbal request by some Police Officer. He should have examined the Police Officer or made further enquiry from other source. An application under section 117 (3) must be dealt with care and prudence realizing that orders under section 117 (3) are not mere routine orders nor are these orders designed to anticipate final orders that may be made but that they are urgent orders arising out of an emergency and can only be justified in the exceptional circumstances of an emergency. In my opinion there was no material on the record from which reasons could be recorded within the meaning of section 117 (3) Cr. P. C. The order passed by the learned District Magistrate was clearly without any legal basis. I, therefore, accept the reference made by the learned Sessions judge and direct that the order under section 117 (3) be set aside. A. H. Order set aside.