JUDGMENT 1. This is a rule calling upon the Magistrate of the district to show cause why the order complained of in this petition binding down the applicants to keep the peace under sec. 107 of the Code of Criminal Procedure should not be set aside on the grounds (1) that there is no definite evidence on the record to show that each individual person bound down is about to commit a breach of the peace and (2) that two opposing parties have been proceeded against and bound down to keep the peace in one proceeding. No one appears to show cause but the learned District Magistrate has submitted an explanation in which with reference to the first ground he says "there is evidence that a combination has been formed by the Appellants to harass certain jotedars of the village." As regards Defendants Nos. 1, 2 and 8, there is definite evidence, "There is evidence that Defendants Nos. 4 to 11, 17 to 19, 23 and 25 to 27 have been concerned on one or more occasions on which fighting has taken place between the parties. As regards the remaining Defendants Nos. 12 to 16, 20 to 22, 24 and 29, there is evidence only that they are members of the combination and likely to cause a breach of the peace if not bound down." 2. As regards the second ground upon which the rule is granted, the learned Magistrate says that the persons against whom proceedings were taken were all concerned in the same matter; that it does not appear that they have been prejudiced by the joint inquiry, and that on the other hand if the proceedings had been separate the Petitioners whose case would probably have been taken up first would have some objection that the other party obtained thereby a temporary advantage. 3. It appears from this explanation that as regards the Defendants Nos. 12 to 16, 20 to 22, 24 and 29, there is no evidence that they are likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity beyond the fact of their being members of a certain combination that has been formed. That is evidence far too vague in our opinion to justify an order under sec. That is evidence far too vague in our opinion to justify an order under sec. 107 binding them down to keep the peace. It is quite true the object of sec. 107 of the Code of Criminal Procedure is to prevent and not to punish offences against the public tranquillity and it is not necessary, therefore, to prove that the persons sought to be bound down to keep the peace have really been guilty of offences against the public tranquillity; and it will be enough if facts are proved from which it may be reasonably inferred that the persons in question would be likely to disturb the public peace. But the facts proved to warrant such our inference must be facts of definite nature and must show that the persons sought to be bound down are individually and not merely collectively connected with them. No hard and fast rule can be laid down applicable to all cases. Each case must be determined upon its own circumstances. This view is in accordance with that taken by the Allahabad High Court in the case of Empress v. Abdul Kadir ILR 9 All. 452 (1886); and having regard to all the circumstances of this case we think that the Defendants Nos. 12 to 16, 20 to 22, 24 and 29 are not shown to be likely to disturb the public peace so as to render them liable to execute bonds to keep the peace. The order as regards these Defendants must therefore be set aside on the first ground upon which the rule was granted. 4. There remains then the case of the other Defendants and in regard to them we think that the second ground upon which the rule was granted is a good and valid ground for our setting aside the order made against them. 5. It appears that men of the two contending parties, namely, the twenty-nine persons belonging to the first party and the ten belonging to the second were called upon to show cause why they should not be bound down to keep the peace and the cases against them were all tried together and some of the Defendants on the one side were examined as witnesses against the other side in one and the same proceeding. 6. This is a course which in our opinion is not warranted by law. 6. This is a course which in our opinion is not warranted by law. The case against the persons on the one side at least should have been tried separately from that against the other side; and where the number composing one set of persons called upon to show cause why they should not be bound down to keep the peace is large, we think it desirable that they should be divided into batches and separate proceedings held against each batch. It is true the enquiry under sec. 107 of the Criminal Procedure Code need not be as formal as a criminal trial strictly so called; but considering the consequences of an order under sec. 107 which may result in the imprisonment of the Defendants in the event of their inability to furnish the security required the main principles applicable to a criminal trial regarding joinder of charges and the joint trial of accused persons may well be held to be applicable to inquiries under sec. 107. And turning to the sections of the Code relating to the joinder of charges and the joint trial of accused persons we find that sec. 233 lays down the rule that there shall be a separate trial of each person for each offence with which he is charged as a general rule, subject to the exceptions contained in secs. 234, 235, 236 and 239; and sec. 239 provides that "When more persons than one are accused of the same offence or of different offences committed in the same transaction or when one person is accused of committing any offence and another of abatement of or attempt to commit such offence, they may be charged and tried together or separately as the Court thinks fit." But here not only were the persons on the same side tried together but persons belonging to the two opposite parties were all tried together and it cannot be said that they were concerned in the same transaction in any proper sense of the term. The enquiry therefore was in our opinion most irregular. 7. Then the question remains whether sec. 537 of the Code of Criminal Procedure does not cure the irregularity where it is not shown that the irregularity has occasioned a failure of justice. To this question there are two answers. The enquiry therefore was in our opinion most irregular. 7. Then the question remains whether sec. 537 of the Code of Criminal Procedure does not cure the irregularity where it is not shown that the irregularity has occasioned a failure of justice. To this question there are two answers. In the first place it cannot be said that the Defendants have not been prejudiced where twenty-nine persons belonging to one party and ten persons belonging to the other have all been tried in the same proceedings relating to the question whether all or any of them should be bound down to keep the peace specially when we find that some amongst them have been examined as witnesses in the case. Upon this point the observations of this Court in the case of Bachu Mullah v. Siaram Singh ILR 14 Cal. 358 (1886), which was a case in which counter-charges of rioting were preferred and the accused in both the cases were tried together, are partinent to the case before us. "I think," says the learned Chief Justice referring to the course followed in that case, "that is a course which is to be deprecated to the last degree. I think it a very great pity that Magistrates should ever adopt it. There is no doubt to my mind that it constitutes a very great irregularity and the reason why it is so very objectionable is that you call a man as witness whose conduct has been inquired into, but the decision in whose case has not been pronounced, and you hear his statement of the case given before the very person who is to decide upon his guilt or innocence and by doing that you introduce an element into the question whether or not he will tell the truth, which ought not be there, because he has a personal interest in the enquiry. His liberty or life may be at stake on what will be the verdict in his own case and it is not in human nature to suppose that he would under such circumstances give his evidence in the impartial way that it ought to be given in a Court of justice. His liberty or life may be at stake on what will be the verdict in his own case and it is not in human nature to suppose that he would under such circumstances give his evidence in the impartial way that it ought to be given in a Court of justice. Therefore it seems to me that it is not only an irregularity but an irregularity of a grave kind and in this matter I am speaking not only for myself but I believe for my brother Beverley also and therefore I hope that in similar enquiries in future, Judges and Magistrates will discontinue this irregular and highly objectionable practice." 8. These salutary directions, we regret to find, have not been borne in mind in the enquiry in this case. It is true that after making these observations the learned Judges held in the case before them that sec. 537 of the Code of Criminal Procedure cured the irregularity. 9. With reference to this last-mentioned point, namely, whether sec. 537 can cure an irregularity of this sort, we think we are bound to follow the decision of the Privy Council in the case of Subramania Iyer v. King-Emperor 5 C.W.N. 866 : S.C. ILR 25 Mad. 61 (1901) in which their Lordships held that sec. 537, Cr.P.C. was not intended to cure an irregularity of the descriptions similar to the present. 10. We must therefore set aside the order of the Court below as regards all the twenty nine accused persons, the second ground upon which the rule was granted being applicable to them all. It may be that the Magistrate had good reason for binding them down to keep the peace. The order we how make will not prevent the Magistrate's taking fresh proceedings in due form and in making an order binding them or any of them to keep the peace upon proper materials, if he finds reason for binding them or any of them to keep the peace. The bonds given by the Defendants and their sureties will be discharged. [Upon an application of Rajendra Narain Chowdhury and others of the second party, a similar rule having been issued, the following order dated the 27th July 1903 was passed by their Lordships. The bonds given by the Defendants and their sureties will be discharged. [Upon an application of Rajendra Narain Chowdhury and others of the second party, a similar rule having been issued, the following order dated the 27th July 1903 was passed by their Lordships. This Court has already upon the motion of the opposite party set aside the order made against them and the grounds upon which the order made against the opposite party has been set aside apply equally to the Petitioners before us. That being so, for the reasons given in our judgment in Revision Case No. 563 of 1903, we make this rule absolute and set aside the order complained of.]