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1951 DIGILAW 38 (KER)

Moideen Kunju v. State

1951-03-21

GOVINDA PILLAI, KOSHI

body1951
Judgment :- Koshi, J. 1A. This Criminal revision raises two questions regarding an order under S.113(3), Travancore Criminal P.C. One is whether the order was made prematurely or without jurisdiction in that it was passed before the order under S. 108 was read and explained to the persons sought to be proceeded against and the other is whether in substance or in form the order complies with the requirements of the sub-section. 2A. The records of the case which have been called for do not show that the preliminary order was read or explained to the present petitioner or to the other counter-petitioners in the case before the order under S.113(3) was passed. Decided cases show that the Court cannot pass an order under the said sub-section until after the enquiry is commenced as envisaged by sub-s. L See Criminal Proceedings No. 444 of 1122 dated 26.6.1122 of the High Court of Travancore in Criminal. Revision Petitions 112 and 126 to 134 of 1122 and the decisions in Emperor v. Sidik Ghulam Hyder Chandio (AIR 1943 Sind 163) and Emperor v. Yusuf Jumo (AIR 1943 Sind 175). 3A. As for the second point all that the Magistrate has said is that for the reasons stated in the police report dated 14th May 1950 he calls upon each of the counter-petitioners to execute a bond in a sum of Rs. 500 with two sureties that they would keep the peace until the conclusion of the inquiry. This blind acceptance of a Police Officer's report would seem not to satisfy the requirements of the sub-section. See job v. Kuruvilla (1949 TLR 41); Emperor v. Nabibux (1942 Sind 86) and Gagendra v. The King (AIR 1950 Cal. 200). In my opinion the order under revision would seem to call for interference. 4A. The present petition however is by the first counter-petitioner alone and there are as many as seven counter-petitioners in the case. Counter-petitioner 5 had moved this Court in Criminal Revision Petition No. 238 of 1950 and that was dismissed by my learned brother Govinda Pillai, J. by his order dated 12th October 1950 in these words "Heard both sides. No ground for interference. Dismissed." 5A. Counter-petitioner 5 had moved this Court in Criminal Revision Petition No. 238 of 1950 and that was dismissed by my learned brother Govinda Pillai, J. by his order dated 12th October 1950 in these words "Heard both sides. No ground for interference. Dismissed." 5A. Out of deference for the view entertained by a brother judge regarding the very order now under revision I would instead of passing the final order on this revision myself, refer the matter to a Division Bench for decision and I order accordingly. The revision was filed out of time but in the circumstances of the case I thought it proper to allow the application for condoning the delay. An order to that effect has been passed by me this day of Criminal M.P. No. 554 of 1950. ORDER OF THE DIVISION BENCH Koshi, J. 1B. Counter-petitioner 1 in M.C. 20/1950 on the file of the Division First Class Magistrate, Alleppey has preferred this revision against an order passed by the learned Magistrate directing the counter-petitioners thereto to execute interim bonds for keeping the peace. Before the present petitioner filed this petition counter-petitioner 5 in the case had filed a similar application in Criminal Revision Petition No. 238/1950 and that was dismissed by my learned brother Govinda Pillai, J. sitting alone. Afterwards when this petition came up before me it was argued that the order under revision was open to exception in more ways than one. An unreported Division Bench ruling of the Travancore High Court in Criminal Proceedings No. 444 of 1122, dated 26.6.1122 as also a line of decisions of the Chief Court of Sind were cited in support of the revision. I then thought it proper to refer the petition to a Division Bench. That is how this revision happened to come up before a Division Bench. 2B. The grounds of attack directed against the order are two. They are (1) that the order was made prematurely or without jurisdiction in that it was passed before the order under S.108 was read or explained to the persons sought to be proceeded against and (2) that in form or substance the order does not satisfy the requirements of the relevant sub-section of S.113 namely sub-s. (3). 3B. They are (1) that the order was made prematurely or without jurisdiction in that it was passed before the order under S.108 was read or explained to the persons sought to be proceeded against and (2) that in form or substance the order does not satisfy the requirements of the relevant sub-section of S.113 namely sub-s. (3). 3B. The argument on the first ground was that the Court that has seized of the case could not pass an order under sub-s. (3) unless and until the enquiry referred to in sub-s. (1) is commenced and according to the learned Counsel for the petitioner that enquiry does not commence before the preliminary order under S.108 is read and explained to the persons proceeded against. This contention no doubt finds support in the unreported decision of the Travancore High Court referred to above and in the Sind cases cited at the Bar; Emperor v. Ghulam Mahomed (AIR 1943 Sind 122); Emperor v. Sidik Ghulam Hyder Chandio (AIR 1943 Sind 163) and Emperor v. Yusuf Jumo (AIR 1943 Sind 175). The question is when the enquiry contemplated under S.113(1) can be said to commence. The argument raised by the learned Public Prosecutor and the learned Counsel for the petitioner in the Court below is that the enquiry should be considered to commence at least when the persons sought to be proceeded against are brought or appear before the court to answer the charge against them. According to them when the counter-petitioners to a proceeding under Chap. VIII are so before the Court the stage is set for the enquiry and the fact that due to the exigencies of the work of the Court the case has to be adjourned from time to time would not mean the enquiry has not become yet one pending before the Court. This appears to me to be a common sense interpretation of the provisions in S.113(1) and (3). A recent Division Bench ruling of this Court passed by the learned Chief Justice and Sankaran, J. Abraham Upadesi v. Mathai Titus ((1951) 6 D.L.R.Travancore-Cochin 18) took the same view of this question. This appears to me to be a common sense interpretation of the provisions in S.113(1) and (3). A recent Division Bench ruling of this Court passed by the learned Chief Justice and Sankaran, J. Abraham Upadesi v. Mathai Titus ((1951) 6 D.L.R.Travancore-Cochin 18) took the same view of this question. Apart from the fact that the construction sought to be upon the two sub-sections by the petitioner's learned Counsel would lead to several practical inconveniences and difficulties and hamper the proper working of the preventive sections of the Code, I am far from satisfied that the construction sought to be given on behalf of the State would offend any provision of the Code. Words similar to those occurring in S.113(1) occur in S.249(1) and interpreting the corresponding provision in the Indian Criminal Procedure Code (S.252(1) in Pandurang v. Emperor (AIR 1931 Bom. 411 (412) two learned judges of the Bombay High Court said as follows: "As to whether the enquiry or trial had commenced on 31st July or not we are clearly of opinion that under the definition of "inquiry" under S.4(k), Criminal P.C., combined with the provisions of S.252, Chap.21 of the same Code, the inquiry of the case was not deferred till such time as the Magistrate would begin to record evidence, but commenced, not indeed with the lodging of complaint or even with the issue of process, but with their appearance on such processes before the Magistrate to answer the charges." This accords with the view I take here and that taken in Abraham Upadesi v. Mathai Titus (1951) 6 DLR Trav-Cochin 18. 1951 KLT 396. 4B. In this case the preliminary order was passed on 22nd April 1950 and out of the seven counter-petitioners in the case six of them appeared before the Court and furnished bail on 24th April 1950. The seventh counter petitioner entered appearance on 28th June 1950 and he was also allowed bail. Meanwhile the petitioner before the lower Court., moved that Court, by means of a petition, supported by an affidavit sworn to by him, that action be taken against the counter-petitioners under sub-s. (3) of S.113. These papers were forwarded to the police for enquiry and report. The police submitted their report on 14th May 1950 supporting the motion. Meanwhile the petitioner before the lower Court., moved that Court, by means of a petition, supported by an affidavit sworn to by him, that action be taken against the counter-petitioners under sub-s. (3) of S.113. These papers were forwarded to the police for enquiry and report. The police submitted their report on 14th May 1950 supporting the motion. The Court passed its order now sought to be revised only on 19th July 1950 and the records show that before that order was passed Counter-petitioner 1 (the petitioner before us) had filed an objection and that afterwards the vakil for the counter-petitioners had sought leave to file certain documents to support the objection. Those papers were actually field and it is with all those materials before him and after hearing both sides that the learned Magistrate passed his order now impugned. Apart from what has been said above as to when an enquiry under S.113(1) commences I cannot on the facts of the present case find any substance in the complaint that the order was made prematurely or without jurisdictions. 5B. As for the second ground urged before us the facts set out in the preceding paragraph of this order clearly show that the Magistrate had applied his mind to the question whether any emergent action was called for. No doubt his order could have been better worded and he could have referred to the documents and the arguments advanced at the Bar rather than rely solely on the report of the police. The form of the order is rather unsatisfactory but I do not think that sufficient grounds are made out for this Court's interference. Magistrates like other judicial officers have not only to see that justice is done but also that the parties are made to feel that justice is being done to them. An order like the present one before us, "that for reasons stated in the police report dated the counter-petitioners shall execute bonds etc." is hardly likely to instill or inspire the necessary confidence in the minds of the parties or the public and it is no wonder that it was sought to be challenged in revision. This observation however is only by the way. For reasons already explained the petition fails and it will stand dismissed. Govinda Pillai, J. I agree. Dismissed.