B.N. Sarma, J.
1. This Rule was obtained by the petitioner Abdul Latif against the order of Shri K. C. Das, Magistrate First Class (E), Gauhati dated 12-1-1972 passed in Misc. Case No. 337 of 1971 under Section 107, Cr.P.C. requiring him to execute an interim bond for keeping the peace under Section 117(3) of the Cr.P.C. The petitioner filed a revision petition against this order before the Sessions Judge at Gauhati and this having proved abortive he came to this Court and obtained a Rule on 7-1-1973. The impugned order of the Magistrate came to be passed in the following circumstances.
2. On 4-6-1971 the opposite party Shri Amanat Ali Chowdhury filed a petition before the Additional District Magistrate (E) . Gauhati praying for taking action against the petitioner and 4 others under Section 107, Cri.P.C., alleging apprehension of serious breach of the peace from them in the matter of repairing a house said to belong to the opposite party standing on his land which was said to have been obstructed by the petitioner and others who were arrayed as the second party. This application was sent to the Police for enquiry and report. After enquiry Police submitted a report recommending drawal of a proceeding under Section 107, Cr.P.C. against the second party and to bind them down in the sum of Rs. 500/- each for keeping peace for a period of one year with one surety of the like amount. On receipt of the police report the learned Additional District Magistrate transferred the case to Shri K. C. Das, Magistrate First Class, Gauhati, who being satisfied from the police report that there was apprehension of breach of the peace from the second party drew up an order under Section 112 of the Cr.P.C. asking the second party to show cause why they should not be asked to execute bonds in the sum of Rs. 1, 000/- each for keeping peace for a period of one year. On receipt of the notice, the members of the second party appeared in Court on 28-8-1971. On this date as the trying Magistrate was absent, they were allowed to go on bail of Rs. 500/-each to appear on 15-9-1971. On 15-9-1971 the case was adjourned to 15-10-1971 for showing cause by the second party. On the next day i.e. on 15-10-1971, the second party showed cause denying the allegations made by the first party. On this date the first party filed an application praying for taking interim bonds from the second party making some fresh allegations against them. It was stated, inter alia, in that petition that on 6-10-1971 the second partymen attempted to assault the first party and failing to assault him caused damage to his Auto Rickshaw for which an information was lodged at the Police Station. This application was sent to police for enquiry and report and the case was fixed on 25-11-1971 for evidence. On 25-11-1971 the case was adjourned on the application of the first party till 27-12-1971. In the mean time Police submitted a report on the application of the first party dated 15-10-1971 in favour of the first party. On receipt of this report the case was taken up by the Magistrate on an off day i.e. on 23-12-1971 in the absence of the second party and passed a curious order issuing warrant of arrest against the second party purportedly under Section 114, Cr.P.C. On 27-12-1971 the members of the second party appeared and they were allowed to go on bail of Rs. 500/- each again and the case was fixed on 31-12-1971. On 31-12-1971 the following order was recorded by the Magistrate:
Both parties present. Seen petition filed by the second party. They have shown cause saying that the accusations are false and in support of this they have referred to some old records. The first party is giving emphasis on taking interim bonds from the second party. Seen petition of the second party and heard argument of their lawyer. The case is fixed on 8-1-1972 for rehearing of both parties and for consideration of the documents filed by them.
On 8-1-1972 both parties filed some deeds, map and copies of certain Jamabandis and the Magistrate heard arguments of the lawyers of both parties on the basis of such documents. The case was fixed on 12-1-1972 on which date the impugned order was passed which is as under:
According to first party there is no dispute over land. According to him 2nd party created breach of peace while repairing houses, According to 2nd party there is dispute over land trying to take possession of the land. The first party Amanat Ali and 13 others have mutation over land consisting of dag No. 1736, patta No. 1105. It is seen that the S.D.C. has ordered for mutation on 16-4-1964 in pursuance of order of Civil Court dated 30-5-1957, allowed mutation of names of Amanat Ali and others in respect of land measuring 3 Kathas 5 lechas.
From other records it is also seen that there is bitterness amongst the parties over old litigations. The first party has narrated some events. In respect of some incident the name of Abdul Latif is only seen in report of police, which is over a dispute of Rickshaw. Therefore all members of the 2nd party cannot be asked to give ad interim bond. Abdul Latif is only ordered to furnish ad interim bond under Section 117(3) of the Criminal P.C. for preservation of peace till disposal of proceeding. The order is pronounced in presence of both parties.
3. Mr. K. P. Sen, the learned Counsel for the petitioner challenged the impugned ord.er on the following grounds before me:
(I) that without making any enquiry into the allegations whatsoever, the learned Magistrate had no jurisdiction to pass an order for interim bond under Section 117(3) of the Criminal P. C;
(II) that the learned Magistrate committed into an illegality in passing the impugned order on an alleged event subsequent to the order under Section 112, Criminal P.C. about which the petitioner was not asked to show any cause;
(III) that at any rate the impugned order is bad in law as it discloses no emergency and as the learned Magistrate has not assigned any reason for making such an order, as required under Section 117(3) of the Criminal P. C.
4. An interim order under Sub-section (3) of Section 117 can be made only on the commencement of the enquiry, i. e. after compliance with the provisions of subsection (1). As held by the Supreme Court in Madhu Limaye v. Ved Murti AIR 1971 SC 2481 : 1971 Cri LJ 1715 the words 'pending completion of enquiry' occurring in Section 117(3) postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. In that case the order under Section 117(3) made by the Magistrate without examining any witness was set aside by the Supreme Court with the following observation:
It will be noticed that before the Magistrate took action to call for an interim bond, he did not make any efforts to enquire into the truth of the information as is required by Section 117(3) of the Code. He only saw the Police report and was satisfied from it, without even questioning the Sub-Inspector. He did question him with regard to Narender Shastri who is described in the Order as O. P. No. 3 but not others. It is also to be noticed that the case was fixed on the following day for statements of Madhu Limaye and Ram Adhar Giri and there is no mention that any witnesses were to be present. In fact even on the next day the Magistrate was not going to try case but only take statements from the petitioners.
It appears therefore that the Magistrate used the powers under Section 117(3) without commencing to enquire into the truth of the information. No sworn statement of any kind was obtained by him and he adjourned the cases for the examination of the petitioners without summoning the witnesses in support of the information. He however, asked the petitioners to furnish an interim bond or go to jail.
It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry; postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It has not given to the Magistrate power to postpone the case and hear nobody and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan or Ved Murti Bhatta or any of the witnesses named in the challan. Nothing of this was done. Therefore the proceedings for asking for an interim bond were completely illegal.
The foregoing observations of the Supreme Court make it abundantly clear that without making an attempt to ascertain the truth of the allegations by examining at least a few witnesses, the Magistrate cannot merely ion perusal of a police report, pass an order under Section 117(3) asking the person proceeded against, to execute an interim bond for keeping the peace pending completion of the enquiry. In the instant case, that is what has been done by the learned Magistrate. He did not examine even the first party at whose instance the proceeding has been initiated, not to speak of any other witness. It appears from the order that the learned Magistrate passed the impugned order simply relying on a statement made in the police report on the application of the first party dated 15-10-1971 that the petitioner damaged an Auto Rickshaw belonging to a nephew of the first party. No opportunity was given to the petitioner to say what he has got to say about the allegation. In these circumstances I find that the first contention of the learned Counsel for the petitioner has got sufficient force.
5. The second contention is also found to be well founded. Section 112 of the Criminal P.C. requires a Magistrate to make an order in writing setting forth the substance of the allegations received and other particulars as mentioned therein. Section 1) 3 lays down that if the person in respect of whom such order is made is present in Court, it will be read over to him, or, if he so desires, the substance thereof shall be explained to him. If the person concerned is not present in Court when the order is made a summons or warrant as the case may be, shall be issued to such person, as required under Section 114. Section 115 provides that summons or warrant issued under Section 114 shall be accompanied by a copy of the order made under Section 112 and such copy shall be delivered by the officer serving or executing such summons or war-rant to the person served with or arrested under the same. The order setting forth the substance of the allegations takes the place of charge and it is meant to enable the person in respect of whom the order is made to know what are the allegations against him, which he is to meet. That being so the Magistrate cannot travel beyond the allegations on the basis of which the order under Section 112, Criminal P.C. was made in requiring the person, in respect of whom the order is made, to execute an interim bond under Section 117(3), Criminal P.C. The enquiry must be confined to the allegations on the basis of which the order under Section 112 was made. If he proposes to take any action on the basis of any incident, subsequent to the order under Section 112, he must make a new order on the basis of such allegation and afford an opportunity to the persons concerned to show cause. In the instant case the learned Magistrate while taking action under Section 117(3) has relied on an allegation made by the opposite party subsequent to the order under Section 112, Criminal P.C. in his application dated 15-10-1971. No separate order under Section 112, Criminal P.C. was made on the basis of this allegation and no opportunity was afforded to the petitioner to show cause on such allegation. The impugned order thus suffers from another serious infirmity.
6. The last contention of Mr. Sen is equally strong. Section 117, Criminal P.C. requires a Magistrate to record his reasons while directing a person to execute an interim bond. In recording the impugned order which has been quoted earlier, in extenso, the learned Magistrate has not assigned, any reason whatsoever. He has simply narrated the case of the respective parties, the fact that the first party has got mutation in respect of the disputed land and that the name of the petitioner is seen in the police report regarding the dispute over a rickshaw. There is nothing to indicate any emergency or that there is any apprehension of breach of the peace from the petitioner during the pendency of the enquiry if he is not bound down. In Jagdish Prasad v. The State : AIR1957Pat106 it was held:
Before a Magistrate contemplates making such an emergency order, he is bound to direct his consideration to the question of such an emergency and the necessity of a prompt and immediate measure. Such an order must also have a direct relation to the object for which the proceedings are taken. If he does not state his reasons in writing prior to his taking an emergency measure under Section 117(3), it will be extremely difficult for a superior Court to know what fact or facts during the enquiry under Section 117(1) influenced the Magistrate to pass an ad interim order.
The discretion exercised under this Subsection has always to be examined to ascertain whether it has been done judiciously or capriciously and this is impossible to be done in absence of any reason recorded by the Magistrate. In this particular case, the learned Magistrate did not give any reason, whatsoever, when demanding ad interim bonds from the petitioners. Later, on the date fixed for execution of the ad interim bonds, he merely expressed that the police report indicated that the members of the opposite party were likely to create a breach of the peace. To my mind, even this reason is not sufficient to pass an order under Section 117(3). The Magistrate is bound to state the reasons for which he thought there was likelihood of those persons committing a breach of the peace during the proceeding period itself. I am satisfied, therefore, that the order passed under Section 117(3) was bad in law.
I am in respectful agreement with this view. In the instant case non-disclosure of my reason by the Magistrate for taking such emergency measure is a serious infirmity in the impugned order warranting interference in revision.
7. In the result the impugned order of the learned Magistrate dated 12-1-1972 requiring the petitioner to execute an ad interim bond is hereby set aside. The Rule is made absolute and the revision petition is allowed.