T.N.R. Tirumalpad, C.J.
1.The learned Sessions Judge has made this reference regarding the order of the Magistrate Shri W.U. Mulla, dated 30.11.61, by which lie dropped the proceedings under Section 107 Cr.P.C. against the respondents and discharged them from the proceedings and he has recommended that the said order should be set aside.
2. The facts relating to this reference are as follows:
The petitioner herein filed an application on 8.4.61 before Shri K.P. Chakraborty, S.D.M., Sadar, against the respondents alleging that the respondents entered on his land and started cultivating it and when he protested they threatened him and so he filled a complaint before the Police on 6.4.61 and that after the filing of the said complaint, the respondents were threatening again to beat and kill him and hence he had to file this complaint to take proceeding against the respondents under Section 107 Cr.P.C. The Magistrate called for a Police report from the O/C., Bishalgarh Police Station and the O/C reported on 4.5.61 stating that his enquiry disclosed that the respondents were really trying to create a breach of the peace by threatening to beat and kill the petitioner. Thereupon, the S.D.M., drew up proceedings under Section 107 on 26.5.61 against the respondents to show cause why they should not be ordered to execute a bond for Rs. 300/- with one surety for Keeping the peace for a period of one year. On 29.6.61, both parties appeared in Court. But I find from the order-sheet that the order on that date was passed by Sri Bimal Dev, Magistrate and not by the S.D.M. He ordered bail for Rs. 100/- each with one surety for the respondents. It is not known how another Magistrate could deal with the case and pass such an order.
3. Thereafter, on 25.9.61, the case was transferred by the S.D.M. to Shri W.U. Mulla, Magistrate and on that day, the petitioner was present with two witnesses. Shri W.U. Mulla, however, adjourned the case to 27.10.61. On 27.10.61, we find an order in the order sheet 'put up to-morrow for discussion'. But this order Is not signed by the Magistrate. Again, we find another order en the very same date, namely, 27.10.61, stating that the first party was absent, that the second party was present and that the case was adjourned to 22.11.61. This order is also not signed by the Magistrate. As to what happened on 22.11.61, is not known as there is no order on that date In the order-sheet. What we next find la an order dated 30.11.61, stating that the Magistrate had heard the learned Counsel of both parties, that the record revealed that the trouble between the par. ties arose from a disputed land, that the dispute being the ground of the proceeding under Section 107 Cr.P.C. the parties should seek redress under Section 145 Cr.P.C. that the proceeding under the said section would decide the land dispute and bring an end to the apprehended breach of the peace until further decision was made by a competent Civil Court and that this was not a fit case for proceeding under Section 107 Cr.P.C. and therefore he dropped the proceeding and discharged the second party. It was against that order that the first party, namely, the petitioner moved the Sessions Judge and the Sessions Judge made this reference.
4. The procedure adopted by the lower Court has been highly Irregular in this case from the very beginning. It is not known how Shri Bimal Dev, Magistrate could have passed any order for bail on 29.6.61, when the case was pending before the S.D.M. Shri K.P. Chakraborty. Again, there Is no provision In the Criminal Procedure Code for a Magistrate to direct a party who appears before him in answer to summons under Section 107 Cr.P.C to furnish bail. The respondents were not arrested and produced before him. Nor were they accused of or suspected of the commission of any non-bailable offence. Nor had the Magistrate issued any Warrant for the arrest of the respondents under Section 114 Cr.P.C. Hence, the Magistrate had no authority to direct them to furnish bail. The procedure to be followed is provided under Section 117(3) Cr.P.C. Section 117(3) provides that the Magistrate may for reasons to be recorded in writing, direct the respondents to execute a bond with or without sureties for keeping the peace or maintaining good behaviour until the conclusion of the enquiry. But in the present case, the Magistrate straightaway ordered the respondents to furnish toll even before reading over and explaining his order made under Section 112 Cr.P.C. to them. This was certainly irregular and should not have been done by the Magistrate. I find that it was only on the subsequent hearing dated 7.8.61 that the S.D.M. read over and explained the proceedings to the respondents. On that date, he did not consider it necessary to proceed under Section 117(3) egainst them. Of course, these observations are not strictly necessary for disposing of this reference. But I have seen the Magistrates in many cases acting in violation of the provisions under these security sections and I have made these observations to correct this particular irregularity in future.
5. What the Magistrate Sri W.U. Mulla did after the case was transferred to him was again thoroughly irregular. I find that this Shri W.U. Mulla is not in the habit of writing the orders In the order-sheet himself. He evidently permits Home Clerk in his Office to write the orders. This cannot be permitted. The orders in the order-sheet relating to a case must be written by the Magistrate himself and this work should not be left to a Clerk in his Office. The result in this case has been that two orders written in the order-sheet, elated 27.10.61, are not signed by the Magistrate Bhri W.U. Mulla. The explanation of Shrl W.U. Mulla will' be called for this serious irregularity. Again, subsequent to 27.10.61, there is no order in the order-sheet to show what happened in the case tin the next hearing date, namely 22.11.151. We Know from the subsequent order that on 22.11.1961, the case must have been adjourned to 30.11.1961. But the order of adjournment has not even been written In the order-shoot. All that we find is that the case was taken up on 30.11.01, and the order now complained against was passed by the Magistrate. This is again highly irregular. The Magistrate must remember that he is doing Judicial Work and that the record of the Judicial Work done by him on each date in a case must be written in his own hand-writing In the order-sheet and initialled toy him. He must also remember that the order-sheet in a case will also be perused by the superior Courts when matters go up in appeal or revision. Shrl W.U. Mulla will explain why there was no order In the order-sheet for 22.11.01 and how he happened to take up the case on 30.11.61.
6. I now come to the order passed by the Magistrate on 30.11.61. There is no doubt that this order is passed in violation of the provisions of Section 117 Cr.P.C. When once proceedings are started under Section 107 Cr.P.C. and the Magistrate has Issued the order under Section 112 Cr.P.C. and the parties appear before him, the Magistrate has under Section 117(1) to hold an enquiry into the truth of the Information upon which action has been taken by him under Section 107. Section 117(2) states that such enquiry shall fee made, as nearly as may be practicable in the manner prescribed for conducting trials and recording evidence in summons cases. The petitioner also wanted to adduce evidence in the case and at least on a previous occasion was ready with his witnesses, but the Magistrate adjourned the matter as he did not have time. That being the case, the Magistrate cannot, without holding any enquiry as provided under Sections 117(1) and (2), simply drop the proceedings against the respondents. We have to remember that the Magistrate started proceedings on being satisfied that the respondents were likely to commit breach of the peace and that the respondents had appeared before him on receipt of the summons. In such a case, the Magistrate had to hold ; the enquiry contemplated under Section 117(1). There is no provision in the Criminal Procedure Code to drop the proceedings without holding the enquiry when once the proceedings had been drawn up under Section 112 Cr.P.C. Section 118 Cr.P.C. provides that if, upon such enquiry. It is proved that it is necessary for keeping the peace or maintaining good behaviour, that the person in respect of whom the enquiry is made should execute a bond with or without sureties, the Magistrate shall make an order accordingly. Section 119 provides that if it is not so proved, the Magistrate may make an entry on the record to that effect and he shall discharge the person. But there is no provision simply to drop the proceedings without holding the enquiry contemplated under Section 117(1).
7. It was stressed for the respondents that in a case where the Magistrate was satisfied that there was no further likelihood of breach of the peace, he has the right to drop the proceedings and it was also pointed out that in the present case after dropping the proceedings on 30.11.61 there has been no breach of the peace by the respondents until now and that therefore the Magistrate was not wrong in dropping the proceedings and discharging the respondents without holding the enquiry. But the order of the Magistrate does not show that he dropped the proceedings on being satisfied that there was no likelihood of the breach of the peace by the respondents. He dropped the proceedings because he thought that the case was one which should be dealt with under Section 145 Cr.P.C. which meant that ho still believed that there was likelihood of breach of the peace, but that the said likelihood was as a result of dispute about land. In such a case he can convert the proceedings into one under Section 145 Cr.P.C. and draw tip fresh proceedings under the said section. But in any case, he cannot drop the proceeding altogether.
8. But in the case before us, the Magistrate was wrong in stating that it was a matter which should have been dealt with under Section 145 Cr.P.C. What the petitioner stated in his complaint and what the Police reported to the Magistrate was that the respondents, as a result of the enmity arising out of a land dispute were trying to beat and kill the petitioner. Thus, though the land dispute may have been the cause for the enmity between the petitioner and the respondents, the likelihood of the breach of the peace was not concerning any land. The respondents were threatening personal violence against the petitioner and it is this threat which was likely to occasion a breach of the peace. Thus, the proceedings should have been under Section 107 Cr.P.C. I am not impressed with the argument that because there was no breach of the peace after 30.11.01, till this date, there was really no likelihood of breach of the peace by the respondents. The petitioner immediately took the matter to the Sessions Judge and the matter was pending in the Sessions Court and after the reference was made to this Court by the Sessions Judge, the matter has been pending In this Court. When thus, Court proceedings were pending, the respondents are not likely to create a breach of the peace. But it is quite likely that when those proceedings are over, they would still create a breach of the peace.
9. My attention was drawn to the decision in Chatha Ittaman v. State AIR 1853 Trav. Co., 24. In that decision it was observed that proceedings ?under Section 107 Cr.P.C. are only intended for the security of the public peace and the person most responsible for maintaining peace in a particular locality is the Magistrate of the District and when on cogent grounds he is satisfied that there is no likelihood of a breach of the peace arising on account of all or any of the persons against whom a preliminary order under Section 107 is drawn up there is nothing in the Code which prevents him from dropping that enquiry in whole or part and discharging the persons concerned. I find on a perusal of the said decision that the proceedings in that case were started on a Police report and that the persons against whom the proceedings were started appeared in Court and applied for dropping the proceedings against them undertaking that they will not commit any breach of the peace and the Prosecuting Inspector supported the motion and filed a report to the effect that there was no liklihood then of any breach of the peace being caused by them and the Magistrate dropped the proceedings accepting the said representation made by the Prosecuting Inspector. That decision will not apply to the case before us. Here, the Magistrate was not satisfied that there was no likelihood of a breach of the peace. Instead, his order showed that he felt that the section under which proceedings should be started was Section 145 and not Section 107. I have pointed out that this opinion of the Magistrate was wrong and the proceedings should be under Section 107 Cr.P.C. itself.
10. The reference is, therefore, accepted and the order of the Magistrate dated 30.11.81, is set aside and the case is remanded to the lower Court for holding an enquiry as provided under Section 117 Cr.P.C. The records will be sent to the District Magistrate and he Is directed to send this case for further enquiry to a Magistrate other than Shri W.U. Mulla.