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Madhya Pradesh High Court · body

2010 DIGILAW 1120 (MP)

Suresh Kumar Sharma v. Durgalal Vijay

2010-11-10

BRIJ KISHORE DUBE, S.K.GANGELE

body2010
Judgment S.K.Gangele, J. ( 1. ) The appellant has filed this Writ Appeal against the order dated 31/03/2001 passed by the learned Single Judge in Writ Petition No. 559/1997. ( 2. ) At the relevant point of time, the appellant was posted as Sub- Divisional Magistrate-cum-Officer of Sheopurkalan, District Morena. The administration undertaken an anti-encroachment drive to remove encroachment at Sheopurkalan. It also tried to remove the encroachment made by respondent No. 1 - Durgalal Vijay by way of construction of a Lodge, in that incident, the respondent No. 1 inflicted some injuries over the body of then the Additional Collector Mr. M.K. Agrawal. He was medically examined by the Chief Medical Officer and thereafter a FIR was lodged at Police Station at 6.00 pm on 27/01/1997 to this effect. On the basis of the aforesaid FIR, a Criminal Case vide Crime No. 27/97 at Police Station Sheopurkalan under Sections 353, 323, 186, 294 and 506-B of Indian Penal Code was registered against the respondent No. 1. He was produced before the Additional Chief Judicial Magistrate and the Magistrate ordered release of respondent N. 1 on furnishing surety and bail bond. A case under Section 151, 107 and 116 of the Code of Criminal Procedure was also registered against the respondent No. 1 by the Police for breach of peace. He was produced before the Sub-Divisional Magistrate and the authority directed the respondent No. 1 to furnish the bail bond and surety of Rs. 20,000/-, when he did not furnish the bail bond and surety, he was sent to Jail on 28/01/1997. Thereafter, the respondent No. 1 filed a Revision before the Sessions Judge against the order of the Sub-Divisional Magistrate, the Sessions Judge ordered release of the respondent No. 1 on bail. After passing the order, the respondent No. 1 was released from Jail on 30/01/1997. ( 3. ) The respondent No. 1 filed a Petition before this Court under Article 226 of the Constitution and pleaded that he was illegally detained from 28/01/1997 to 30/01/1997, hence, a damage of an amount of Rs. One lac be awarded to him against the appellant and prosecution of the appellant be also ordered for tampering with the record of the case registered against him under Sections 151, 107 and 116 of Criminal Procedure Code. He pleaded that on 27/01/1997, Mr. One lac be awarded to him against the appellant and prosecution of the appellant be also ordered for tampering with the record of the case registered against him under Sections 151, 107 and 116 of Criminal Procedure Code. He pleaded that on 27/01/1997, Mr. M.K. Agrawal, the respondent No. 3 in the original petition, the appellant S.K. Sharma, respondent No. 2 in the original petition and respondent No. 4 Shri M.L. Todi, the then Town Inspector, Sheopurkalan came to the house of the respondent No. 1 and Mr. M.K. Agrawal manhandled him and beaten him. He had also received injuries, thereafter he had been taken to Police Station Sheopurkalan and detained illegally. A false report was lodged against him at Police Station Sheopurkalan by Mr. M.K. Agrawal and a criminal case under Sections 333, 353, 506-B and 294 of I.PC. was registered against him. He was arrested for the aforesaid offences on 27/01/1997 at about 6.30 PM, thereafter, an application for bail was moved by him on 28/01/1997 and the Additional Chief Judicial Magistrate granted bail to him of Rs. 20,000/-. The bail was furnished on the same day, consequently, the Additional Chief Judicial Magistrate ordered release of the respondent No. 1 on the same day. The respondent No. 1 also came to know that proceedings under Section 151 of the Code of Criminal Procedure were also undertaken against him, hence, he moved an application for bail before the Appellant and the appellant rejected the aforesaid application for bail and thereafter he was sent to Jail. The respondent No. 1 also moved an application for suppling the copy of the order of the Sub-Divisional Magistrate, the appellant, however, the copy was not supplied to him. Thereafter on 28/01/1997, a Revision Petition was filed before the Sessions Judge, Sheopurkalan and the record of the Court of Sub-Divisional Magistrate was requisitioned and then the respondent No. 1 came to know that the Sub-Divisional Magistrate asked to submit a surety of Rs. 20,000/- and because the respondent No. 1 did not submit the surety, hence he was sent to Jail. The Additional Sessions Judge allowed the interim application of the respondent No. 1 and ordered release on bail of Rs. 1000/- only and thereafter, the bail of the respondent No. 1 was accepted by the appellant and he was released from Jail on 30/01/1997. ( 4. The Additional Sessions Judge allowed the interim application of the respondent No. 1 and ordered release on bail of Rs. 1000/- only and thereafter, the bail of the respondent No. 1 was accepted by the appellant and he was released from Jail on 30/01/1997. ( 4. ) The respondent No. 1 pleaded that the appellant deliberately sent him to Jail and fabricated the documents and order-sheet of the case. It has further been contended by the respondent that he had wrongly been denied the facility of release on bail by the appellant and he was not at all asked by the appellant to furnish a surety of Rs. 20,000/- and the intention of the appellant was to sent him Jail. ( 5. ) The appellant in his written statement denied the pleadings of the respondent No. 1. He specifically pleaded that some persons on behalf of the respondent No. 1 submitted an application before him for bail on 27/01/1997, however, at that time, no challan was produced before him, hence, he had rejected the aforesaid application. He mentioned in the application that it be put up on 30/01/1997. He further stated that thereafter the police filed the challan before him on 28/01/1997 and on the same day, the appellant passed an order under Section 111 of the Criminal Procedure Code and ordered that the respondent No. 1 shall furnish a surety of Rs. 20,000/- and a personal bond of the same amount and when the respondent No. 1 did not furnish the surety, it was ordered to issue a Jail warrant of the respondent No. 1 and thereafter the respondent No. 1 was sent in judicial custody. The appellant further denied the fact that he had fabricated the order- sheet dated 28/01/1997 and no copy of the order was supplied to the respondent No. 1. It has further been stated by the appellant that the copying section was more than four kilometer away from the Court, hence, the application was handed over to the counsel of the respondent No. 1 for submitting the same in the copying section. It has further been stated that when the order of the Additional Sessions Judge releasing the respondent No. 1 on bail was filed, he accepted the bail of respondent No. 1 on the same day and ordered for release of the respondent. ( 6. It has further been stated that when the order of the Additional Sessions Judge releasing the respondent No. 1 on bail was filed, he accepted the bail of respondent No. 1 on the same day and ordered for release of the respondent. ( 6. ) The Town Inspector and Additional Collector also denied the allegations of the respondent No. 1. The Additional Collector has clearly stated in his reply that he had been beaten by the respondent No. 1 and thereafter he lodged a FIR against the respondent No. 1. The same facts have been stated by the Town Inspector. ( 7. ) The learned Single Judge in the impugned order accepted the pleadings of the respondent No. 1 by holding that the proceedings under Section 151 of the Criminal Procedure Code were not initiated, properly the signature of the respondent No. 1 had not been taken in the order-sheet and only it has been written in the order-sheet dated 28/01/1997 that a notice under Section 111 of the Criminal Procedure Code was read over to the respondent No.1, however, a notice was not served on the respondent and no notice was issued to the respondent No. 1. The learned Single Judge further observed that the appellant rejected the application of bail of the respondent No. 1 and thereafter a Revision was filed and the Additional Sessions Judge granted bail to the respondent No. 1 and thereafter the bail order was produced before the appellant on 29/01/1997. The learned Single Judge relied on the entries of Rojnamcha Sanha, in which, it has been mentioned that the appellant refused to accept the bail of the respondent No. 1 and thereafter he was sent to Jail. The learned Single Judge further observed that the appellant recorded the proceedings after official time of the Court. The learned Single Judge further observed that there was no occasion to the appellant to proceed against the respondent No. 1 under Section 151 of Criminal Procedure Code when he was arrested for a substantive offence. On the aforesaid findings, the learned Single Judge held that the appellant acted with malice, beyond his jurisdiction and there was intention of the appellant of personal vengeance. The learned Single Judge awarded a damage of Rs. 25,000/- against the respondent No. 1 personally and further directed the State to hold an enquiry against the present appellant for manipulating the records. The learned Single Judge awarded a damage of Rs. 25,000/- against the respondent No. 1 personally and further directed the State to hold an enquiry against the present appellant for manipulating the records. ( 8. ) The learned counsel appearing on behalf of the appellant has contended that the learned Single Judge has committed an error of law in holding that the detention of the respondent No. 1 was illegal and there was no manipulation in the records by the appellant. The learned counsel further contended that the learned Single Judge has committed an error of law in relying on the entries made in Rojnamcha Sanha contrary to the order passed by the appellant in the order-sheet of the case. It has further been contended that the findings recorded by the learned Single Judge that the appellant acted with malice, without jurisdiction and with personal vengeance are contrary to law and without any evidence on record, hence, the impugned order passed by the learned Single Judge is liable to be quashed. ( 9. ) Contrary to this, learned Senior Counsel appearing on behalf of respondent No. 1 has contended that the order passed by the learned Single Judge is in accordance with law. The appellant deliberately rejected the application for bail of the respondent No.1, who was at the relevant time was a leading lawyer of the district. It has further been contended that the appellant manipulated the record and prepared a false order-sheet dated 28/01/1997. He deliberately sent the respondent No. 1 to Jail beyond his jurisdiction, hence, the learned Single Judge has rightly held that the detention of the respondent No.1 was illegal and awarded a damage of Rs. 25,000/-. In support of the aforesaid contentions, the learned Senior Counsel relied on the followings judgments:- (i) AIR 1986 SC 494 (Bhim Singh,MLA vs. State of J and K and others); (ii) 2000 (2) SCC 465 (Chairman Railway Board and others vs. Chandrima Das (Mrs) and others); (iii) AIR 1957 Allahabad 189(Shravan Kumar Gupta vs. Superintendent, District Jail, Mathura and others); (iv) AIR 1983 SC 1086 (Rudul Sah vs. State of Bihar and another); (v) AIR 1958 Punjab 471 (Jai Prakash Beni Pershad and others vs. Ram Sarup and others); (vi) AIR 1971 Allahabad 162(State of U.P. vs. Tulsi Ram and others); and (vii) 2009 (2) M.P.H.T. 435 (DB)(Pooran Singh vs. State of M.P. and others). ( 10. ( 10. ) Undisputed facts of the case are that the administration undertaken an anti-encroachment drive at Sheopurkalan and during that course of action, a criminal case was registered against the respondent No.1 at Police Station Sheopurkalan vide Crime No. 27/97. The Additional Collector Mr. M.K. Agrawal lodged a FIR on 27/01/1997 at around 7.00 pm to the effect that he along with other persons including the Chief Executive Officer Mr. Sharma had been taking a round of the city, when they reached near Sona Lodge, respondent No. 1/ Durgalal came to him and shouted that he would kill him and thereafter he had beaten him, in that event, the complainant fell down over the ground and he received grievous injuries. He was examined by the doctor and doctor certified that the complainant Mr. M.K. Agrawal received injuries. On the basis of the aforesaid complaint, the police registered offence under Section 353, 333, 186, 294, 323 and 506-B of IPC against the respondent No. 1. Thereafter the respondent No. 1 was produced before the Magistrate and an application for bail was filed before the Magistrate. The Additional Chief Judicial Magistrate granted bail in favour of the respondent No. 1 and ordered that on furnishing a surety of Rs. 20,000/- and a personal bond of Rs. 20,000/-, the respondent No. 1 shall be released on bail. Thereafter, the respondent No. 1 submitted the surety and personal bond and he was released by the appellant. ( 11. ) The respondent No. 1 levelled allegations that as the proceeding under Section 151 of the Criminal Procedure Code was also initiated against him, hence, on behalf of him an application was submitted before the appellant for releasing on bail and that application was rejected by the appellant and thereafter he was sent to Jail, actually no proceedings were initiated against him by the appellant, and the appellant fabricated the order-sheet dated 28/01/1997, in which, it has been mentioned that the respondent No. 1 was produced before him and he was ordered to furnish a surety and bond of Rs. 20,000/- and when he refused to furnish the same, he was sent to Jail. Contrary to this, the appellant in his written statement stated that on 27/01/1997, when the application was filed by the respondent No.1 for releasing on bail, no challan was filed by the police before him, hence, he rejected the aforesaid application. 20,000/- and when he refused to furnish the same, he was sent to Jail. Contrary to this, the appellant in his written statement stated that on 27/01/1997, when the application was filed by the respondent No.1 for releasing on bail, no challan was filed by the police before him, hence, he rejected the aforesaid application. On 28/01/1997, the Police filed a Estagasa registered vide Crime No. 8/97 under Section 107, 116(3) and 151 of Cr.P.C. alongwith the Estagasa, the respondent No. 1 was also produced before the appellant in police custody and because the allegations against the respondent No. 1 were that he had beaten the Additional Collector during the anti-encroachment drive and there was a danger to peace of the area, hence, a notice under Section 111 of the Cr.P.C. was read over to the respondent No.1 and he was also ordered to furnish a surety of Rs. 20,000/- and a personal bond to that amount and when the respondent No. 1did not furnish the surety and bond amount, then a Jail warrant was issued. ( 12. ) Chapter VIII of the Criminal Procedure Code prescribes provisions of surety for keeping the peace and for good behaviour. Section 107 of the Code prescribes of taking surety for keeping peace in certain cases. The relevant section is as under: "107. surety for keeping the peace in other cases- (1) When an Executive Magistrate receives information that any person is 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 and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond [with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction." ( 13. ) Section 111 of Cr.P.C. prescribes that a Magistrate acting under Section 107 shall make an order in writing in regard to amount of bond to be executed by the person and classes of securities to be taken. Section 112 of Cr.P.C. prescribes procedure in respect of person present in Court. It has been mentioned in the aforesaid section that if a person is present in the Court, the order shall be read over to him and facts of the case shall also be explained to him. The relevant sections are as under: "111. Order to be made: 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. 112. Procedure in respect of person present in Court: If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him." ( 14. ) Section 116 of the Code prescribes a procedure in regard to an enquiry as to truth of information. As per Section 122, if any person ordered to furnish surety under Section 106 or Section 117 of the Code, does not furnish such surety, he shall be committed to prison and if he is already in prison be detained in prison. ( 15. ) The Honble Supreme Court in the case of Madhu Limaye v. Sub Divisional Magistrate, Monghyr and others, reported in AIR 1971 SC 2486 has considered in detail the aforesaid provisions of Criminal Procedure Code and held as under: "30. We next proceed to consider the constitutional validity of Chapter VIII of the Code. It finds place in part IV which has the explanatory heading Prevention of Offences. The Chapter is divided into three divisions A, B and C. The purport of the Chapter can be gathered from its sub-heading Of Security for keeping the Peace and for good behaviour. 31. Division A is for security for keeping the peace on conviction. It finds place in part IV which has the explanatory heading Prevention of Offences. The Chapter is divided into three divisions A, B and C. The purport of the Chapter can be gathered from its sub-heading Of Security for keeping the Peace and for good behaviour. 31. Division A is for security for keeping the peace on conviction. It consists of only one section (S. 106) and it provides that on conviction for certain offences, the Court may, at the time of passing sentence on the person convicted, if of opinion, that it is necessary to take a bond for future good behaviour, order him to execute a bond, with or without sureties for keeping the peace for a period not exceeding three years. The sum for which the bond is taken is proportionate to the means of the person and it becomes void if the conviction ultimately fails. The section is aimed at persons whose past conduct has proved dangerous to the public and is intended to secure public tranquillity and peace. 32. Division B then consists of 12 sections (Sections 107-110 and 112-119) and applies to cases other than those mentioned in S. 106. Of these, S. 107 is for taking security generally for keeping the peace; S. 108 is for security for good behaviour from persons disseminating sedition; S. 109 for security for good behaviour from vagrants and suspected persons and S. 110 for security for good behaviour from habitual offenders. Sections 112-119 lay down the procedure to be followed in these cases. We are concerned in these cases with the provisions of S. 107 and therefore need not refer to Ss. 108-110. 33. The gist of S. 107 may now be given. It enables certain specified classes of Magistrates to make an order calling upon a person to show cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is 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. The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is 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. The Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction. The section goes on to empower even a Magistrate not empowered to take action, to record his reason for acting, and then to order the arrest of the, person (if not already in custody or before the court) with a view to sending him before a Magistrate empowered to deal with the case, together with a copy of his reason. The Magistrate before whom such a person is sent may in his discretion detain such person in custody pending further action by him. 34. The section is aimed at persons, who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity. This is an instance of preventive justice which the courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of offences. 35. Both the sections are counter-parts of the same policy, the first applying when by reason of the conviction of a person, his past conduct leads to an apprehension for the further and the second applying where the Magistrate, on information, is of the opinion that unless prevented from so acting, a person is likely to act to the detriment of the public peace and public tranquillity. The argument is that these sections (more particularly S. 107) are destructive of freedom of the individual guaranteed by Art. 19 (1) (a) (b) (c) and (d) and are not saved by the restrictions contemplated by cls. (2) to (5) of the Article. It is also contended that there are no proper procedural safeguards in the sections that follow. Before we deal with these contentions it is necessary to glance briefly at sections 112 -119 of Divisiton B and sections 120-126-A of Division C. 36. We have seen the provisions of S. 107. That section says that action is to be taken in the manner hereinafter provided and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to its own procedure and not recording to the whim of the Magistrate concerned. It behoves us, therefore, to emphasise the safeguards built into the procedure because from them will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public. 37. The procedure begins with S. 112. It requires that the Magistrate acting under S. 107 shall make an order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands. Although the section speaks of the substance of the information it does not mean the order should not be full. It may not repeat the information bodily but it must give propose notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word substance means the essence of the most important parts of the information. 38. Next follow three sections - Ss. 113-115. They deal with the persons presence. It may not repeat the information bodily but it must give propose notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word substance means the essence of the most important parts of the information. 38. Next follow three sections - Ss. 113-115. They deal with the persons presence. Section 113 deals with the situation when the person is present in court, then the order shall be read over to him and if he so desires, the substance of it shall be explained to him. This is not a mere formality. The intention is to explain to the person what the allegations against him are. The next section (S. 114) deals with a situation when the person is not present in court. There the option is two-fold. Ordinarily a summons must issue to him but in cases where the immediate arrest of the person is necessary a warrant for his arrest may issue. This is however subject to the qualification that there must be a report of a Police Officer or other information in that behalf and the breach of the peace cannot otherwise be prevented. The Magistrate must not act on an oral information but must record the substance of it before issuing a warrant. The section also envisages a situation in which the person is already in custody. In that case the Magistrate shall issue a warrant directing the Officer having the custody to produce that person. The provisions of this section are quite clearly reasonable in the three circumstance it deals with. If the presence of the person is to be secured, a summons to him is the normal course except in the other two cases. 39. Section 115 then provides that such summons or warrant under S. 114, as the case may be, must be accompanied by the order under S. 112 and the person serving or executing the summons or warrant must serve the order on the person. There is enabling power in S. 116 under which the Magistrate may dispense with the presence of the person in Court and allow him to appear by a pleader. 40. Then follows S. 117. That section (omitting the proviso to the third sub-section and omitting sub- sections (4) and (5) which do not concern us) may be read here: "117. There is enabling power in S. 116 under which the Magistrate may dispense with the presence of the person in Court and allow him to appear by a pleader. 40. Then follows S. 117. That section (omitting the proviso to the third sub-section and omitting sub- sections (4) and (5) which do not concern us) may be read here: "117. Inquiry as to truth of information- (1) When an order under section 112 has been read or explained under section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under S. 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases. (3) Pending the completion of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety may for reasons to be recorded in writing, direct the person in respect of whom the order under section 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or in default of execution, until the enquiry is concluded". 41. The first sub-section read with the second requires the Magistrate to proceed to inquire into the truth of the information. The third sub-section enables the Magistrate to ask for an interim bond pending the completion of the inquiry by him. This is conditioned by the fact that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for prevention of public safety. This is applicable where the person is not in custody and his being at large without a bond may endanger public safety etc. The Magistrate has to justify his action by reasons to be recorded in writing. This is applicable where the person is not in custody and his being at large without a bond may endanger public safety etc. The Magistrate has to justify his action by reasons to be recorded in writing. If the person fails to execute a bond, with or without sureties, the Magistrate is empowered to detain him in custody. 42. A question was raised before us whether the Magistrate can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. Other learned Judges are of the opinion that sub-ss. (1) and (2) envisage that the Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording his reasons in writing can the interim bond be asked for. Some of the cases on the previous view are - Emperor v. Nabibux, AIR 1942 Sind 86, Dulal Chandra Mondal v. State, AIR 1953 Cal 238 , Gani Ganai v. State, AIR 1959 J and K 125 and Laxmilal v. Bherulal, AIR 1958 Raj 349. Those representing the other view are - In re Muttuswami, ILR (1940) Mad 335=(AIR 1940 Mad 23) (FB), In re, Venkatasubba Reddy, AIR 1955 Andh Pra 96, Jagdish Prasad v. State, AIR 1957 Pat 106 , Jalalludin Kunju v. State AIR 1952 Trav Co. 262, Shravan Kumar Gupta v. Superintendent District jail, Mathura, AIR 1957 All 189 , Jangir Singh v. The State, AIR 1960 Punj 225, Rama Gowda v. State of Mysore, AIR 1960 Mys 259 and Ratilal Jasraj v. State, AIR 1956 Bom 385 . 43. In our opinion the words of the section are quite clear. As said by Straight J. in Empress v. Babua, (1883) ILR 6 All 132, the order under S. 112 is on hearsay but the inquiry under S. 117 is to ascertain the truth of the necessary information. Subsection (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the person in custody. Subsection (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the person in custody. Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate. The facts must be of definite character. In Nafar Chandra Pal v. Emperor, 28 Cal WN 23 = (AIR 1924 Cal 114) there was only a petition and a report and these were not found sufficient material. In some of the cases before us no effort was made by the Magistrate to inquire into the truth of the allegation. The Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely, one sided. It cannot be described as an inquiry within an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond on placing the person in custody in default. In an old case reported in A. D. Dunne v. Hem Chunder, (1869) 12 Suth WR Cr 60 (FB) a Full Bench of the Calcutta High Court went into the matter. The case arose before the present Code of Criminal Procedure and, therefore, there was no provision for an interim bond. But what Sir Barnes Peacock C. J. said applies to the changed law also not only with regard to the ultimate order but also to the interim order for a bond. The section even as it is drafted today, is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prime facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore it is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed. 44. The power which is conferred under this Chapter is distinguished from the power of detention by executive action under Art, 22 of the Constitution. Although the order to execute a bond, issued before an offence is committed, has the appearance of an administrative order, in reality it is judicial in character. Primarily the provision enables the Magistrate to require the execution of a bond and not to detain the person. Detention results only on default of execution of such bond. It is, therefore, not apposite to characterise the provision as a law for detention contemplated by Art. 22. The safeguards are therefore different. The person sought to be bound over has rights which the trial of summons case confers on an accused. The order is also capable of being questioned in superior courts. For this reason, at every step the law requires the Magistrate to state his reasons in writing. It would make his action purely administrative if he were to pass the order for an interim bond without entering upon the inquiry and at least prima facie inquiring into the truth of the information on which the order calling upon the person to show cause is based. Neither the scheme of the chapter nor the scheme of S. 117 can bear such an interpretation. We accordingly, held in the case of Madhu Limaye (Writ Petn. 307 of 1970- Madhu Limaye v. Ved Murti, (reported in AIR 1971 SC 2481 ) that as the case was simply adjourned from time to time and there was no inquiry before remanding him to custody his detention was illegal. We may now briefly notice the remaining sections of the Chapter. 45. 307 of 1970- Madhu Limaye v. Ved Murti, (reported in AIR 1971 SC 2481 ) that as the case was simply adjourned from time to time and there was no inquiry before remanding him to custody his detention was illegal. We may now briefly notice the remaining sections of the Chapter. 45. Section 118 then lays down that if upon inquiry it is proved that the person be called upon to execute a bond for keeping the peace or maintaining good behaviour the Magistrate may call upon him to execute a bond. The security must not be more than that stated in the order under S. 112, nor excessive. Under S. 119 the Magistrate may discharge the person or release him from custody if the necessity for keeping him bound over is not proved. 46. The last Division numbered C relates to proceedings subsequent to S. 118 Sec.120 fixes the terminus a quo for the period for which security is required Section 121 gives the contents of the bond and the conditions under which there is a breach of the bond. Section. 122 empowers the Magistrate to reject sureties but only after inquiry and recording the evidence and his reasons for rejection. Section 123 gives power to commit a person to prison or to be detained in prison if already there for the duration mentioned in the bond. If the period is more than a year then the proceedings have to be submitted to a superior Court. It also provides for ancillary matters. Section 124 empowers the District Magistrate or a Chief Presidency Magistrate to release a person so detained when there is no longer any hazard to the community or to any other person. There are other provisions for reducing security etc. with which we are not concerned. Section 125 enables the same Magistrates to cancel any bond for sufficient reason and under S. 126 the sureties also stand discharged. Section 126A deals with security for the unexpired period of bond to which no special reference is needed. 47. The gist of the Chapter is the prevention of crimes and disturbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered. The acting being preventive is not based on overt act but on the potential danger to be averted. 47. The gist of the Chapter is the prevention of crimes and disturbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered. The acting being preventive is not based on overt act but on the potential danger to be averted. These provisions are thus essentially conceived in the interest of public order in the sense defined by us. They are also in the interest of the general public. If prevention of crimes, and breaches of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life, there can be no doubt that they are in the interest of public order. As we have shown above public order is an elastic expression which takes within it various meanings according to the context of the law and the existence of special circumstances. This power was used in England for over 400 years and is not something which is needed only for administration of colonial empires. Its need in our society today is as great as it was before the British left. We find nothing contrary to article 19 (1) (a), (b), (c, and (d) because the limits of the restrictions are well within cls. (2), (3), (4) and (5). We accordingly hold the Chapter as explained by us to be constitutionally valid. 48. Before we leave this topic it is necessary to emphasise that there is no room for invocation of other provisions of the Code such as S. 55 or 91. In some of the cases of the High Courts, to which reference is not necessary, recourse has been taken to these provisions in aid of Chapter VIII. Apart from the fact (which we have sufficiently emphasised above) that S. 55 deals with special cases of arrest and cannot be made applicable S. 107 itself speaks that the procedure of Chapter VIII should be followed, where Ss. 112, 113 and 114 of the Code prescribe their own procedures. Similarly, S. 91 may be available till the order under S. 112 is drawn up. After it is drawn up the Magistrate has to act under Ss. 113 and 117 (1). Then there is no room for Sec. 91. The reasoning in some of the cases of which Vasudeo Ojha v. State of Uttar Pradesh. Similarly, S. 91 may be available till the order under S. 112 is drawn up. After it is drawn up the Magistrate has to act under Ss. 113 and 117 (1). Then there is no room for Sec. 91. The reasoning in some of the cases of which Vasudeo Ojha v. State of Uttar Pradesh. AIR 1958 All 578 is an example, is fallacious. 49. There is also no question of bail to the person because if instead of an interim bond, bail for appearance was admissible Chapter VIII would undoubtddly have said so. Further bail is only for the continued appearance of a person and not to prevent him from committing certain acts. To release a person being proceeded against under S. 107/112 of the Code is to frustrate the very purpose of the proceedings unless his good behaviour is ensured by taking a bond in that behalf." ( 16. ) The Allahabad High Court in the case Ram Charan vs. State, reported in AIR 1953 SC 375 has held that proceedings under Section 106 of Criminal Procedure Code are judicial proceedings: "I may add that the action of the City Magistrate, Sri T.R. Barker, in requesting the Magistrate to consider the advisability of passing an order under section 106, Cr.P.C., was very improper. Proceedings under section 106, Cr.P.C. Are not administrative proceedings. They are no doubt proceedings for prevention of offences and not for punishment of persons committing offences....." ( 17. ) From the aforesaid judgment of the Honble Supreme Court as well as Patna High Court, it is clear that the Executive Magistrate has power to initiate proceedings if there is an apprehension of breach of peace. He has power to obtain a surety and also execution of a bond and if a person fails to produce the bond or surety, he has also power to sent the aforesaid person in Jail. The proceedings are the judicial proceedings and the Executive Magistrate performs the judicial function. ( 18. ) In the present case, the learned Single Judge has relied on the entries recorded by the police in Rojnamcha Sanha, copy of which has been filed as Annexure R/1-4. The proceedings are the judicial proceedings and the Executive Magistrate performs the judicial function. ( 18. ) In the present case, the learned Single Judge has relied on the entries recorded by the police in Rojnamcha Sanha, copy of which has been filed as Annexure R/1-4. It has been mentioned in Annexure R/1-4 that on the basis of to the act of respondent No. 1, the proceedings under Section 151 of Cr.P.C. were initiated against him and he was produced before the appellant and the appellant refused to grant bail to the respondent No.1, hence, a Jail warrant was prepared and the respondent No. 1 was sent to Jail. These proceedings recorded on 28/01/1997 are contrary to the order-sheet written by the appellant on 28/01/1997, in which, it has been mentioned that the respondent No. 1 was directed to furnish a surety and a personal bond of Rs. 20,000/- each and when he did not furnish the surety, he was sent to Jail. ( 19. ) Section 172 of the Code of Criminal Procedure gives mandate to the Police Officer to keep the diary of the proceedings of the investigation. The relevant section is as under: "172. Diary of proceedings in investigation: (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. [(1A) The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary]. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872, shall apply." ( 20. ) The Honble Supreme Court in Malkiat Singh and others vs. State of Punjab, reported in (1991) 4 SCC 341 has held in regard to evidenciary value of the entry recorded in case diary as under: "11.It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-s. (2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-s. (3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code s. 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court. It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act. It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act. The entries cannot be used by the accused as evidence. Neither PW-5, nor PW-6, nor the court used the case diary. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence." It is clear from the aforesaid judgments that the entry cannot be used as an evidence. ( 21. ) The Honble Supreme Court further in the case of Anil Rishi vs. Gurbaksh Singh, reported in 2006 (5) SCC 558 has held as under in regard to onus of burden of proof: "The elementary rule in Section 101 is inflexible. In terms of Section 101, Evidence Act, 1872, ordinarily, the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not on the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same." From the aforesaid judgment of the Honble Supreme Court, it is clear that the entry recorded by the police in case diary and other documents could not be held to be a proof of fact as an evidence. In the present case, the learned Single Judge has relied upon on the entries recorded in the Rojnamcha Sanha to prove the fact of illegal detention of the respondent No.1, in our opinion, the learned Single Judge has committed an error of law in relying on the aforesaid entries. ( 22. ) Apart from this, the learned Single Judge has completely over looked the provisions of Judicial Officers Protection Act, 1850. The aforesaid Act has been enacted for giving protection to Magistrate and those acting judicially. The relevant section is as under: "1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders: No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same." ( 23. ) The Honble Supreme Court in the case of Anowar Hussain vs. Ajoy Kumar Mukherjee and others, reported in AIR 1965 SC 1651 has approved the judgment of the Allahabad High Court in Tayen vs. Ram Lal, ILR 12 Allahabad 115 and held as under: "8. In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers Protection Act, 1850. In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers Protection Act, 1850. Section 1 of the Act, in so far as it is material provided : "No Judge, Magistrate, * * * Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of;.". The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute, it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in goods faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression "jurisdiction" does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter: Tayen v. Ram Lal, ILR 12 All 115." ( 24. ) The Allahabad High Court in the case of State of U.P. vs. Lakshmi Narain Singhal, Criminal Misc. Cont.Case 22 of 1960 reported in AIR 1962 Allhabad 137 has held as under: "6. ) The Allahabad High Court in the case of State of U.P. vs. Lakshmi Narain Singhal, Criminal Misc. Cont.Case 22 of 1960 reported in AIR 1962 Allhabad 137 has held as under: "6. The fundamental question is whether in the circumstances of this case the serving of the notice under Sec.80 C.P.C. on the Magistrate by Laxmi Narain Singhal amounts to contempt or not. I am satisfied that there may be cases in which the service of such a notice on a Magistrate by a person who is being tried or proceeded against in that Magistrates court will not necessarily constitute contempt. The test is whether the person concerned has any valid cause of action against the Magistrate on which he can legally base a suit; for if he is legally entitled to file a suit, the essential preliminary for which is the service of a notice under Sec.80 C.P.C., it would obviously amount to stifling his legitimate remedy if he were held to be precluded from serving the notice. The crux of the matter therefore is whether the respondent in the present case could legally file a suit against the Magistrate. 7. The Judicial Officers Protection Act, 1950, provides as follows:- "No Judge, Magistrate, Justice of Peace, Collector or other person acting judicially shall be liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of judicial duty, whether or not within the limits of his jurisdictions: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of." This section affords protection to a Judge or Magistrate acting judicially in two classes of cases: (a) in respect of acts done or ordered to be done within the limits of his jurisdiction, and (b) for acts done or ordered to be done outside the limits of his jurisdiction. In the first class of cases the protection afforded by the Act is absolute and the officer concerned will not be liable to be sued, whether or not he has acted erroneously, irregularly or even illegally or in bad faith, vide the Division Bench decision in Teyen v. Ramlal, ILR 12 All 115, whereas in the second class of cases protection can be claimed only if the officer in good faith believed himself to have jurisdiction to do or order the act complained of. 8. In the present instance I am satisfied that the act ordered to be done by the City Magistrate, i.e. detaining the respondent in custody from 9-2-1960 to 10-2-1960, was clearly within his jurisdiction. Section 117(3), Cri. P.C. Provides: "Pending the completion of the inquiry under sub-section (I) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under Sec.112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded." Under this section the Magistrate was fully empowered to demand a bond with sureties from Laxmi Narain Singhal and to order his detention in custody until such bonds were executed. 9. The main ground taken by Laxmi Narain Singhal in the notice under Sec.80 C.P.C. as the basis for challenging the action of the Magistrate was that as soon as the required bonds were written out and signed by the two sureties who came forward on 9-2-1960, execution of the bonds was complete, and that the Magistrate was bound under Sec.117 (3) to release the respondent from custody without further ado. It is obvious, however, that this is not a correct reading of the section. The mere drafting, writing out and signing of the bonds is not enough: they must also be presented by persons whom the Magistrate considers to be fit to stand as sureties. This is clear from Sec.122, Cri. It is obvious, however, that this is not a correct reading of the section. The mere drafting, writing out and signing of the bonds is not enough: they must also be presented by persons whom the Magistrate considers to be fit to stand as sureties. This is clear from Sec.122, Cri. P.C. which lays down that:- "A Magistrate may refuse to accept any surety offered............on the ground that such surety is an unfit person for the purposes of the bond: Provided that, before so refusing to accept.....he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him." It was just such an inquiry as is envisaged by Sec.122 that the Magistrate embarked on in the present case on 9-2-1960. He felt unsatisfied regarding the fitness and solvency of the persons who were offering themselves as sureties and consequently declined to accept them then and there but instead, after having allowed the proposed sureties to be cross-examined, postponed consideration of the matter to the following day. In such circumstances it is obvious that there was no acceptance of the proposed sureties as fit persons and therefore it cannot be said that any bonds had been executed as required by Sec.117(3), Cri. P.C. It follows that the suggestion made in the notice under Sec.80, C.P.C. that merely because the proposed sureties had signed their bonds, the Magistrate acted illegally or without jurisdiction in continuing to detain the respondent in custody, is entirely without force. 10. An attempt has also been made to argue that if the Magistrate was not satisfied with the sureties who were offered, he should straightaway have rejected them on 9-2-1960; and that he had no jurisdiction to postpone the matter for consideration to the following day But I see no force in this line of argument either. No Judge or Magistrate can be obliged to give immediate orders on any matter if in the exercise of his discretion he thinks it necessary to postpone the case to another date; and there can be no doubt that he has full jurisdiction to order postponement of the matter in such circumstances. 11. No Judge or Magistrate can be obliged to give immediate orders on any matter if in the exercise of his discretion he thinks it necessary to postpone the case to another date; and there can be no doubt that he has full jurisdiction to order postponement of the matter in such circumstances. 11. The Magistrates action in detaining the respondent in custody has also been assailed on the ground that when his two lawyers personally offered to stand as his sureties, the offer was summarily turned down, by the Magistrate. The learned Government Advocate has objected that this plea was not taken at all in the notice under Sec.80, C.P.C. and therefore should not be considered in the present proceedings; but since it appears to have been included (by a subsequent amendment of the plaint) as a cause of action in the suit that was filed in pursuance of the notice, I do not think it proper to exclude it from consideration. It can be argued that if the suit is found to be maintainable on any ground, whether specifically mentioned in the notice under section 80, C.P.C. or not, the respondent must be deemed to have had a legal remedy against the Magistrate and in such circumstances the issue of notice to the Magistrate under Sec.80, C.P.C., being merely a prlude to the enforcement of that legal remedy would not amount to contempt. 12. Sri M.C. Gupta has denied that the respondents lawyers offered themselves as sureties or that he refused to accept them; and the learned District Judge of Moradabad, who was asked by me to conduct an inquiry into the matter, has come to the conclusion that actually no such offer was made. It is to be noted, however, that Sri Zaka Ullah Khan Advocate and Sri Matru Lal, Retired Public Prosecutor, have both sworn affidavits asserting that they did offer themselves personally as sureties for the respondent Laxmi Narain Singhal, when they found the Magistrate reluctant to accept the sureties who had been first proposed. I do not consider it necessary, however, to give any finding on this question of fact, for even assuming that the respondents allegations in this respect are true, his case is not materially furthered thereby. A Magistrate demanding a bond with sureties from a person under Sec.117(3), Cri. I do not consider it necessary, however, to give any finding on this question of fact, for even assuming that the respondents allegations in this respect are true, his case is not materially furthered thereby. A Magistrate demanding a bond with sureties from a person under Sec.117(3), Cri. P.C. "may detain him in custody until such bond is executed"; and there is not the slightest suggestion that any bond was ever actually executed either by Sri Zaka Ullah Khan or by Sri Matru Lal. Even if it be a fact that Sri Zaka Ullah Khan and Sri Matru Lal suggested to the Magistrate that they were prepared to stand as sureties, this mere suggestion on their part would not he any sufficient reason for him to release Laxmi Narain Singhal from custody. Only if they had actually executed bonds and presented them before the Magistrate, would he have been bound to decide (if necessary after holding an inquiry under Sec.122, Cri. P.C.) whether he considered them fit persons to act as sureties or not; and until that was done the Magisitrate would not be required to pass any order of release and his action in detaining the respondent in custody would be fully in accordance with law. 13. My conclusion is therefore that even if the allegations of the respondent are accepted in to the Magistrate has committed no illegality and was acting fully within his jurisdiction in detaining the respondent in custody on 9-2-1960 and in not releasing him until acceptable sureties were eventually furnished on 10-2-1960, and no suit would lie against the Magistrate for acting in this manner. The question whether the Magistrate acted in good faith or not does not call for decision at all, for even if he acted in complete bad faith in doing what he did, he would be entitled to absolute immunity from suit, since the acts complained of were within the limits of his jurisdiction." ( 25. ) The Honble Supreme Court in the case of Rachapudi Subba Rao vs. The Advocate General, Andhra Pradesh, reported in AIR 1981 SC 755 further held in regard to Judicial Officers Protection Act as under: "Section 1 of the Judicial Offcers Protection Act, 1850 affords protection to two broad categories of acts done or ordered to be done by a judicial officer in his judicial capacity. In the first category fall those acts which are within the limits of his jurisdiction. The second category encompasses those acts which may not be within the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done by him, believing in good faith that he had jurisdiction to do them or order them to be done. If the judicial officer is found to have been acting in the discharge of his judicial duties, then, in order to exclude him from the protection of this statute the complainant has to estblish that, (1) the judicial officer complained against was acting without any jurisdiction whatsoever, and (2) he was acting without good faith in believing himself to have jurisdiction. Held that the tone, temper and contents of the notice issued by the appellant, particularly of the passages which imputed malice, partiality and dishonesty to the Subordinate Judge in the judicial adjudication of the suits against the appellant constituted a deliberate attempt to scandalise the judge, to terribly embarrass him and to lower the authority of his office and the Court. The act and conduct of the appellant in issuing this notice therefore, fell squarely within sub-clauses (i) and (ii) of the definition of "criminal contempt" given in Section 2 (c) of the Contempt of Courts Act." From the aforesaid judgment, it is clear that if an act done or ordered to be done in discharge of judicial capacity is within the jurisdiction of the Magistrate, the protection provided under Act of 1850 is absolute and no enquiry would be entertained even when the act or order was erroneous, irregular or illegal or was done or ordered to be done believing in good faith that he had jurisdiction to do or ordered to be done. ( 26. ) As per the judgments of the Allahabad High Court in the case of Ram Charan (supra) and Honble Supreme Court in the case of Madhu Limaye (supra) that any proceeding initiated before the Magistrate under Chapter VIII of the Cr.P.C. are judicial proceedings, hence, the appellant is entitled protection under Judicial Officers Protection Act, 1850, because the act of the appellant is under the provisions of Criminal Procedure Code and he passed the order under the provisions of the Criminal Procedure Code. Consequently, the appeal filed by the appellant is hereby allowed. Consequently, the appeal filed by the appellant is hereby allowed. The impugned order passed by the learned Single Judge is hereby set aside. No order as to costs.