1. This is a petition under Article 226 of the Constitution of India by Prabhakar Nath Dwivedi, President of the Allahabad University Union, praying for the issue of a writ of habeas corpus directing opposite party No. 2, the Superintendent, Central Jail, Naini, Allahabad, to set the petitioner at liberty at once. The other opposite-party to this petition is the District Magistrate of Allahabad. The facts on which this petition is founded are briefly these. On 12-12-1959 the City Magistrate of Allahabad passed an order under Section 107/112 of the Code of Criminal Procedure saying that whereas it had been made to appear to him by the report of the station officer of police station Colonelganj that due to the situation created by the closure sine die of the University of Allahabad, the petitioner along with others was likely to take out processions, destroy University property, and there was reason to fear the commission of a breach of the peace and disturbance of public tranquillity, the City Magistrate under the provisions of Section 112 of the Code of Criminal Procedure called upon the petitioner to show cause why he should not be made to execute a personal bond of Rs. 1,000/- with two reliable sureties each in like amount for not committing a breach of the peace for a period of two months.
Along with the order aforesaid another order purported to have been made by the City Magistrate under Section 117 (3) of the Code was passed on the same date and it was to the effect that the City Magistrate was satisfied 'from the above mentioned facts and information received from the police'' that it was necessary to take immediate measures for the prevention of breach of peace and disturbance of public tranquillity and he therefore directed the petitioner to execute a personal bond in the sum aforesaid with two sureties also in like amount for maintaining peace and public tranquillity during the inquiry and in default of furnishing sureties, he will be taken into custody and detained until such time that necessary sureties are furnished on the enquiry is completed, whichever is earlier.
Both these notices were served upon the petitioner at his residence by the police on the night between 12th and 13th of December, 1959 at 3 a.m. At the time of his arrest there was also a warrant issued by the City Magistrate on 12th of December, which was in pursuance of his order under Section 117(3) of the Code; and that warrant has also been laid before us. The arrest was made by Sri Jagbir Singh Sirohi, the station officer, of police station, Kydganj, Allahabad. He took the petitioner to the Kotwali police station and produced him before Sri J. P. Singhal a Magistrate of the First Class, who at that time was on duty at the Kotwali. At the time of the production before Sri Singhal the warrant and notices under Sections 112 and 117 (3) referred to above were also laid before him. Sri Singhal then signed a jail warrant and sent the petitioner to jail allowing only one day's remand. Since then the petitioner has been in detention in the Central Jail. These facts are not now controverted before us.
2. Upon the basis of these facts two submissions have been made by learned counsel for the petitioner. The first submission is that there has been an infringement of Article 22(2). That Article requires that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained an custody beyond the said period without the authority of a Magistrate. It is submitted that in this particular case the production of the petitioner before Sri J. P. Singhal was not a production in 'the Court of a Magistrate' because Sri J. P. Singhal was not functioning as a Court at that hour in the Kotwali. We have given this submission due consideration and we do not agree with it. In our opinion Sri Singhal was functioning as a Court when the production was made before him. There is an Assam decision os this point in Prabhat Malla v. D. C. Kamrup, AIR 1952 Assam 167, in which it was held that in a case of this nature it is immaterial where such a Magistrate was sitting at the time of the passing of the order and that there is no violation of the provisions of Article 22 of the Constitution. We therefore reject this first submission.
3. The second submission which has been made by learned counsel for the petitioner is that the detention is illegal because there is no valid order under Section 117 (3) of the Code of Criminal Procedure. It has been contended that under Section 117 (3) of the Code of Criminal Procedure it is only after the parties have appeared in Court and the Magistrate proceeds to inquire into the matter and when he finds that a case of emergency is made out then alone he can direct the execution of interim bonds, and it is not permissible for the Magistrate to call upon the person concerned to execute interim bond before the inquiry starts, and as a part of the order under Section 112 of the Code of Criminal Procedure he cannot simultaneously pass an order under Section 117 (3). This submission appears to us to be perfectly sound. In order to appreciate whether a Magistrate is justified in demanding an ad-interim bond under Section 117(3) of the Criminal Procedure Code while making an order under Section 112 of the Code to show cause under Section 107, a survey of the few sections touching on the subject under Chapter VIII of the Criminal Procedure Code may be made.
4. Chapter VIII relates to security for keeping the peace and good behaviour. The jurisdiction of a Magistrate of the class mentioned in Section 107, Criminal P. C., arises under that section when such a Magistrate is informed 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. If such a Magistrate is satisfied that there is sufficient ground for proceeding against such a person, he should order him to show cause why he should not execute a bond with or without sureties for keeping the peace for a particular period. Section 112 of the Code gives the details of the nature of the order that has to be passed by the Magistrate and has to be served on the person proceeded against. If the person in respect of whom such order is made is present in Court, Section 113 requires that the order shall be read over to him or, if he so desires, the substance thereof shall be explained to him. Section 114 mentions the procedure in cases where the person so proceeded against is not present in Court.
In those cases the Magistrate shall issue a summons requiring him to appear, or when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court. If, in the opinion of the Magistrate, there is reason to fear the commission of a breach of the peace which cannot be prevented without the immediate arrest of that person, the proviso to Section 114 enables the Magistrate to issue a warrant for his arrest solely for the purpose of preventing a commission of a breach of the peace, The enquiry as to the truth of the information upon which action has been taken starts after the order under Section 112 has been read over and explained under Section 113 to a person present in Court or when any such person appears or is brought before the Magistrate in compliance with or in execution of a summons or warrant issued under Section 114. When proceeding to enquire into the truth of the information under Section 117, Sub-section (1), the Magistrate is empowered to take such further evidence as may appear to him to be necessary. Section 117, Sub-section (3) runs as follows :
'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 inquiry is concluded.'
5. We are not concerned with the proviso to this Sub-section. It appears that a temporary order under Section 117 (3) is to be made in the case oi an emergency and must have direct relation to the object for which the proceedings are taken. An emergency may exist in the case of a person being proceeded against prior to his appearance before a Magistrate under the proviso to Section 114, and the other when he is already present in Court or is brought before a Magistrate in compliance with or in execution of a summons or a warrant. It is only when a person is present in Court or has been brought before the Court that a Magistrate can take into consideration whether circumstances do exist for taking immediate measures and. when he is fully satisfied that such circumstances do exist, then and then onlyhe can direct the execution of an ad-interim bond; but, before taking recourse to this action, he has to put his reasons in writing.
It is manifestly clear that Section 112 and Section 117 provide two different procedures for two different ends and, therefore, a Magistrate has no jurisdiction to pass an order under Section 117 (3) along with one under Section 112 as has been done in this case. At the time when he passed an order under Section 117 (3), the person proceeded against was not before him and he had not started to enquire into the truth of the information upon which action had been taken. An emergency order under Section 117 (3) can only be made when the Magistrate has started to enquire into the truth of that information under Section 117 (1) and, in the course of that enquiry, he considers that immediate measures are necessary. We are supported in this view by two decisions, one in jagdish Prasad Verma v. The State, AIR 1957 Pat 106 and the other in In re Venkatasubba Reddy, (S) AIR 1955 Andhra 96.
6. In the present case no enquiry under Section 117, Sub-clause (3) read with Sections 113 and 114 of the Code of Criminal Procedure had been made. Mr. Singhal when he signed the jail warrant took it for granted that an enquiry had been made and that there was a proper order under Section 117, Sub-clause (3), in order to entitle him to sign the jail warrant. That in our opinion, he was not competent to do. The position therefore comes to this. There was no enquiry of the nature envisaged under Section 117 of the Code of Criminal Procedure. The arrest of the petitioner and his subsequent detention are therefore illegal.
7. Learned counsel for the opposite-party hasargued that the order should be construed as oneunder Section 114 of the Code of Criminal Procedure andnot under Section 117, Sub-clause (3) of the Code. Wedo not think that that submission is sound. The proviso to Section 114 says that whenever it appears tosuch Magistrate, upon the report of a police officeror upon other information that there is reason to fearthe commission of a breach of the peace and thatsuch breach of the peace cannot be prevented otherwise than by the immediate arrest of such person,the Magistrate may at any time issue a warrant forhis arrest. No such order within the four corners of Section 114 of the Code has been laid before us as havingbeen passed by the Magistrate. The warrant that hasbeen produced before us was under Section 117, Cr. P. C.The submission therefore that the arrest and detention were valid cannot be allowed to prevail. In thecircumstances we allow this petition and direct thatthe petitioner should be set at liberty forthwith. Wemake no order as to costs.