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1971 DIGILAW 19 (PAT)

Hasibuddin v. State of Bihar

1971-02-11

A.N.MUKHARJI, M.P.VARMA

body1971
JUDGMENT : M.P. Verma, J. 1. A proceeding under Section 107 of the Code of Criminal Procedure was started against Hasibuddin and 39 others by Sri J.N. Prasad, Magistrate, First Class, Kisanganj (Purnea), on 1st May, 1969, when he perused a report of the Officer-in-charge of Pothia police station, dated the 28th April, 1969, and the recommendation of the Circle Inspector of Thakurganj dated the 28th April, 1969. He called upon the petitioners in the court below to show cause as to why they should not execute bonds of Rs. 2,000/-, with two sureties of the like amount each, for keeping peace for a period of one year. The cause was to be shown by the 28th May, 1969. The petitioners did not show cause, but preferred a criminal revision before the learned Sessions Judge of Purnea on 18th June, 1969. The learned Sessions Judge heard both the parties, namely, the petitioners before him and the State, and, by his ORDER :dated the 27th September, 1969, he referred the matter to this Court for quashing the ORDER :of the learned Magistrate. The matter came up for hearing before a learned Single Judge of this Court (the Hon'ble Mr. Justice Shambhu Prasad Singh), who found that there was no consistent view concerning the matter in dispute and so he referred it to a Division Bench and this is how this case has come up before us. 2. The main question to be decided in this reference is, whether an ORDER :of a Magistrate passed under Section 112 of the Code of Criminal Procedure, without giving the substance of the information received, should be allowed to stand or should be quashed. Section 112 reads as follows: When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110 deems it necessary to require any person to show cause under such section, he shall make an ORDER :in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and, the number, character and class of sureties (if any) required. Prima facie, the language of this section is imperative in character, because the word "shall" has been used. Prima facie, the language of this section is imperative in character, because the word "shall" has been used. In the particular case under reference, the learned Magistrate, in his impugned ORDER :dated the 1st May, 1969, wrote as follows:-- Perused the report under Section 107 Cr.P.C. of O/C Pothia P.S. dated 28.4.69 and C.I. of Police, Thakurganj dated 28.4.69 for taking action under Section 107 Cr.P.C. against the O.Ps. I, J.N. Prasad, Deputy Magistrate, 1st Class, am satisfied from the perusal of the above police report that there is serious apprehension of breach of peace from the side of opposite parties over long standing enmity with one Md. Yunush and thereby likely to disturb public tranquility. Draw up proceedings u/s 107 Cr.P.C. against the opposite parties asking them to show, cause on 28-5-69 against the execution of bond of Rs. 2000/- with 2 sureties of the like amount each for keeping peace for a period of one year. Obviously, in this ORDER :he has given no substance of the information which he received from the Police. The purpose of this Section is that, when a person is called upon to show cause, he must know the allegations against him as to why he is being called upon to execute the bond for keeping the peace. This ORDER :under Section 112 of the Code of Criminal Procedure has to cover so many sections like Section 109, 110 etc. and they are not offences, if it can be said so, of a similar nature. So, if the substance of the information is not given in the ORDER :, the person against whom such a notice is issued cannot be in a position to know whether he has to answer an allegation under Section 109 or Section 110 or any other section of the Code of Criminal Procedure. It is the well established principle of law that a party has to show cause or give his own answer to the allegation made against him and then only the Court will look into the whole matter. It is the well established principle of law that a party has to show cause or give his own answer to the allegation made against him and then only the Court will look into the whole matter. If the petitioners in the court below in the instant case had to give their answers, they must be made known dearly what the allegation actually are, otherwise a vague allegation like the present one, namely, that there was serious apprehension of a breach of the peace from the side of these persons on account of long standing enmity with one Mohammad Yunush, is not enough. There may be several overt acts of different nature because of this enmity e.g. the petitioners before the court below might be attacking some person or persons, or forcibly taking possession of some land, or enticing away some girl, or attempting to commit robbery etc. The impugned ORDER :is also not clear whether these petitioners had got trouble with Yunush, because it is said that they were going to disturb public peace because of long standing enmity with Yunush, and not that they were disturbing the public peace by committing some overt act against Yunush. Enmity with Yunush may also impel the petitioners to create disturbance with somebody else. 3. There have been a number of decisions concerning this aspect of the matter, and I may refer to one of the earliest decision on this point given by Fazl Ali, J. (as he then was) in (1) Amanat Ali V. Emperor (A.I.R. 1929 Pat 67). I may quote the following few lines from his Lordship's JUDGMENT :: Besides in the proceeding under Section 107, that has been drawn up in this case, he has only reproduced the language of Section 107, Criminal Procedure Code, without specifying in what way and with reference to what matter the petitioner was likely to commit a breach of the peace and in what way he was likely to do a wrongful act which might occasion a breach of the peace. It is not difficult to see that a vague proceeding like this cannot be supported. 4. It is not difficult to see that a vague proceeding like this cannot be supported. 4. In the matter of (2) Ekbal and 15 others V. Mojibur Rahman and 2 others (Criminal Reference No. 27 of 1969, decided on the 8th April, 1970), A.B.N. Sinha, J. held that "In so far as the substance of the information received against those persons has not been given or disclosed in the ORDER :initiating the proceeding or in the notice issued in pursuance thereof, on that ground alone the ORDER :recommended for being quashed must be quashed and the reference be accepted." 5. In (3) Balkishun Sao V. Munno Khan (1969 B.L.J.R. 479), B.P. Sinha, J. also came to the same conclusion. His Lordship observed: Therefore, it was not clear from the contents of the notices as well as to what allegations the petitioners was to answer. Such ORDER :which does not contain the substance of the information received has been held to be bad............ In (4) Bhuletan Paswan and others V. Uday Narain Singh & another (Criminal Miscellaneous No. 2005 of 1969 and Criminal Revision No. 86 of 1970, decided on the 12th February, 1970) a Division Bench of this Court quashed the proceeding because the ORDER :or the notices did not give any substance of the allegations. Their Lordships observed: ....the learned Magistrate has given no inkling about the information which he received from the police much less a substance thereof, as required under Section 112 of the Criminal Procedure Code. The initiation of the proceeding is accordingly bad and must be quashed. So, all these decisions conform to the same view. 6. In the instant case, the learned Single Judge felt some difficulty in coming to a conclusion because of some observation made in the case of (5) Raghunath Singh V. The State (A.I.R. 1953 Pat 1), which cannot be said to be contrary to the decisions referred to above. In this case also, the following observation was made: ....the object of Section 112 in requiring the substance of the information to be given in the notice is to afford reasonable opportunity to the accused to come prepared with what he has to meet. In this case also, the following observation was made: ....the object of Section 112 in requiring the substance of the information to be given in the notice is to afford reasonable opportunity to the accused to come prepared with what he has to meet. The failure to comply with the provisions of Section 112, however, does not divest the Magistrate of his jurisdiction to deal with the proceeding; and, in the absence of prejudice, the subsequent proceedings ought not to be treated as being void ab initio. It was further observed: The words 'substance of the information' mean such or so much of the information as would enable the party to know under what clause of Section 110 he is charged or to what particular class of offenders he is said to belong.... a mere repetition of the words of the various clauses, of Section 110 ought to be avoided; .... Their Lordships further observed that merely on the ground that the substance of the accusation was not disclosed in the notice the proceeding could not be treated to be void ab initio. This observation was made when the proceeding had ended after the examination of witnesses and after hearing arguments and the decision went against the party who later on challenged that ORDER :as being void ab initio. So, the observation was aptly made in my humble opinion, when it was said that, if the objection to the jurisdiction or to the defect in the proceeding has to be taken, it should be taken at the initial stage, and not when the proceeding has ended and the party complaining has lost the proceeding. So, in my opinion, the case of Raghunath Singh does not contain any opposite view. Procedural defect cannot affect the jurisdiction of a Court unless it has resulted in failure of justice or prejudice to the party concerned. 7. It has, however, been remarked in the above JUDGMENT : that the aggrieved party who does not get particulars of the allegations in the notice, may come to the Magistrate and ask for a clarification, that is, he may demand a clearer notice giving the particulars or the substance of the allegations. In my opinion, this observation was casually made. There is no such provision in the Code of Criminal Procedure to come to the court and ask for clarification. In my opinion, this observation was casually made. There is no such provision in the Code of Criminal Procedure to come to the court and ask for clarification. Of course, in civil cases, there is a provision in ORDER :XI of the Code of Civil Procedure which allows interrogatories to be served on the other side, but there is no corresponding provision in the Code of Criminal Procedure. The notice itself should be sufficient to indicate what type of overt act or offence the person concerned has committed. I would respectfully differ from this observation made in the case of (5) Raghunath Singh (A.I.R. 1953 Pat 1.) A Magistrate should not be allowed to loose thinking. He must strictly comply with the provisions of the Code of Criminal Procedure. If the law requires that he should give the substance of the accusation or substance of the information received, he must do it; and when he does not do so, it will be then seen whether it has caused prejudice to the party concerned, or there has been a failure of justice. In every criminal proceeding or trial the touchstone is the prejudice to the party concerned. If a party accepts the vague notice and files its show cause and allows the Magistrate to proceed with the proceeding and decide it one way or the other, then, at the end when the ORDER :is passed against it, it cannot be allowed to say that the Magistrate had no jurisdiction to deal with the proceeding because in his initial ORDER :he failed to give the particulars or the substance of the information received. Similar views were expressed in the case of (6) Bangali Ahir V. Chaturbhuj Prasad (A.I.R. 1941 Pat 241). In the instant case this objection had been taken at the very initial stage before the filing of the show cause petition and, in my opinion, such an objection could be rightly taken. The petitioners before the court below did not know as to what they had to say in their show cause and in what manner they had to meet the allegations made against them. In such circumstances, the impugned ORDER :of the learned Magistrate is illegal in the eye of law and must be quashed. 8. The petitioners before the court below did not know as to what they had to say in their show cause and in what manner they had to meet the allegations made against them. In such circumstances, the impugned ORDER :of the learned Magistrate is illegal in the eye of law and must be quashed. 8. I may, however, mention that it will be open to the Magistrate to initiate another proceeding under Section 107 of the Code of Criminal Procedure, if there are conditions for such a proceeding present; but he will do so according to law, as pointed out above. In the result, the reference is accepted and the impugned ORDER :of the learned Magistrate is set aside. A.N. Mukharji, J. I agree.