P L D 1962 Dacca 83 (PLP)

In this case a Rule was issued calling upon the District Magistrate, Bogra, to show cause why the order complained of binding the petitioners under section 107 of the Code of Criminal Procedure should not be set aside.

2. It appears that on the report of the local police submitted on the basis of complaint made by the opposite‑party Naba Kanta, the learned Sub‑Divisional Magistrate concerned passed the following order "Accused present. Draw proceeding under section 107, Cr. P. C., against the accused asking them as to why they should not be ordered to execute a bond of Rs. 500 with two local sureties of the like amount to keep peace for a period of one year. The proceeding is read over and explained to the accused who pleads not guilty. Transferred to Mr. T. U. Khan, Magis trate, 1st Class for favour of disposal." The above named Magistrate to whom the case was thus transfer red thereafter took evidence and heard arguments and ultimately passed the order complained of directing the accused persons under section 107 of the Code of Criminal, Procedure to execute a bond of Rs. 100 each with one local surety of the like amount each to keep the peace for a period of one year each. The requir ed surety was ordered to be furnished by specified date. Against that the petitioners preferred an appeal but that was dismissed. It is under these circumstances that the petitioners have come up to this Court in its criminal revisional jurisdiction and obtained the present Rule.

3. Mr. D. L. Rahman, the learned Advocate appearing on behalf of the petitioners has attacked the proceeding itself as well as the final order passed therein on two grounds first because no proceeding as required was drawn up and secondly because the petitioners were not informed of the substance of the accusation against them. According to him the first is an illegality, vitiating the proceeding as well as the final order, while the second kept the petitioners in the dark as to exact wrongful acts alleged against them and thus deprived them of the statutory notice of what they were required to meet and rebut. In this behalf he has placed his reliance upon Abdul Madid v. Crown ((1953) 5 D L R 109); Ujagarsing v. Emperor (30 Cr. L J 839); Sultan Khan v. Emperor (26 Cr. L J 767) and Ce. K. R. Reddi (21 Cr. L J 354), in the first mentioned two authorities both of which are cases of the High Court of West Pakistan, the view taken appears to be that failure to embody the substance of the infor mation received in the order made under section 112 of the Code of Criminal Procedure, being a contravention of the mandatory provision of the law, Is an irregularity not curable under section 537 of the Code of Criminal Procedure and the order binding down the accused under section 107 in such a proceedings is not a legal order. Obviously no formal proceeding was drawn up in pur suance of the order of learned Sub‑Divisional Magistrate cited above and that is also shown by the fact that on an applica tion filed by the petitioners for certified copies of the proceeding and service thereof they were informed that neither (sic) any service return was there on the record. The order mentioned above, that Is the order dated 26‑6‑59 passed by the learned Sub‑Divisional Magistrate for drawal of proceedings under section 107 against the petitioners might be treated as serving the purpose of the required proceeding but even then the difficulty remains that the substance of the Information received, i.e. of the accusation against the accused petitioners, has not been set forth therein, and as such even though the said order is purported to have been read over and explained to the petitioners, they were not given notice of the exact allegations against them.

4. Mr. Shahabuddin Ahmed the learned Advocate appearing on behalf of the opposite‑party Naha Kanta has, however, contend ed that the omission to set out the substance of the information received or to apprise the accused‑petitioners of the same is a mere irregularity that cannot vitiate the proceeding or render an order made therein illegal, unless it is shown that the petitioner has been actually prejudiced in consequence thereof. In this behalf he has placed his reliance upon Bengali Ahir and another v. Chaturbhuj Prasad (A I R 1941 Pat. 241), wherein it has been held inter alia: - "Where the notice under section 107 does not specify any particular wrongful act that the Magistrate was satisfied, was likely to be committed by the person proceeded against, proceed ings are liable to be quashed on such a ground, but not after the whole matter has been inquired into, unless there is a reasonable suggestion of possible prejudice." Similar view appears to have been taken even in two of the above mentioned authorities cited by Mr. Rahman on the other side, namely 26 Cr. L J Sind 767 and 21 Cr. L J Mad.

354. In the latter case it has been laid down per Moore, J. that the defect of the nature mentioned above is not a sufficient ground for the High Court quashing the proceedings of the Magistrate, if it is not shown that the accused was prejudiced thereby. In the other case too the defective order passed by the learned Magistrate was held liable to be set aside inasmuch as the person charged was likely to have been gravely prejudiced by the irregularity.

5. Even proceeding from the standpoint of prejudice as con tended by Mr. Shahabuddin the learned Advocate for the opposite- party, the Rule in the present case must, in my opinion, be made absolute, inasmuch as the complainant of prejudice made on behalf of the accused petitioners cannot, I am afraid, be brushed aside as flimsy or unsubstantial. It is true that the accused petitioners were represented by a lawyer before the Court of first instance and the witnesses for the prosecution too were cross‑examined but that must have obviously been done under compulsion. In any view of the matter the fact remains that the accused‑petitioners were not given notice or informed of the exact accusation that they were called upon to meet and rebut and as such the cross -examination also must have been conducted in ignorance of what there were required to meet. In these circumstances it is difficult to hold that the failure on the part of the Magistrate to give to the accused‑petitioners notice of the allegations on the basis of which they were proceeded against, has not prejudiced them. The, order complained of cannot therefore be sustained. It will how ever be open to the learned Sub‑Divisional Magistrate concerned to proceed against the petitioners afresh, if necessary. In the result the Rule is made absolute and the order com plained of requiring the accused petitioners to furnish surety for keeping the peace for a period of one year as already mentioned above is set aside. K. B. A. Rule made absolute.