1. This is a reference by the Sessions Judge of Benares with the recommendation to this Court that an order passed under Section 117, Clause (3), Criminal P.C., by a 1st Class Magistrate, be set aside as ultra vires.
2. Proceedings under Section 107, Criminal P.C., were pending before the City Magistrate, Benares, against several people. After the Magistrate had made an order under Section 112, Criminal P.C., attempts were being made by the Hindus and the Mahomedans concerned to settle the dispute between them amicably and the case was postponed from time to time, tout nothing seems to have been done, or at any rate nothing was achieved by these postponements. As time was passing, and as there were certain festivals which might have brought about a riot, the City Magistrate passed an order against five persons under Section 117, Clause (3), directing them to execute personal bonds with sureties in the sum of Rs. 500 each to keep the peace until the final disposal of the case. On the same date these five persons applied to the City Magistrate asking for a postponement of the case for one month to enable them to apply for a transfer of the case from the Court of the City Magistrate.
3. The learned Sessions Judge was of opinion that under the law the Court was bound to stop all proceedings in the case and any order passed after an application under Section 526, Criminal P.C., had been made, was ultra vires.
4. We are unable to accept this view of the law. We are of opinion that when an accused person presents an application under Section 526, Clause (8), Criminal P.C., it is the duty of the Court to stay all judicial proceedings, that is, that the Court should not go on hearing the case which was before it. We cannot accept the contention that the jurisdiction of the Court ceases and the Court cannot pass any emergent order which the law authorizes it to pass.
5. Clause 3, Section 117, lays down that if the Court considers immediate measures necessary for the prevention of a breach of the peace and disturbances of the public tranquillity, the Court may direct the person in respect of whom the order made under Section 112 has been made to execute a bond. If the intention of the legislature was to oust the jurisdiction of the Court when an application under Section 526 is presented to the Court, it would be no use to legislate that when immediate measures are necessary, the Court, without deciding the case, should pass order until the final disposal of the case. By passing an order under Clause (3), Section 117 the Court was not going on with the judicial proceedings in the case and, therefore, it was not necessary for the Court to stay its hand completely. We decline to accept the reference. Let the record be returned.