Skip to content


Asghar Khan Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Ref. No. 377 of 1962
Judge
Reported inAIR1964All391; 1964CriLJ260
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 107, 112 and 117
AppellantAsghar Khan
RespondentState and ors.
Appellant AdvocateYogi Raj and ;Raj Kishore Singh, Advs.
Respondent AdvocateMool Behari Saxena, Adv.
DispositionReference rejected
Excerpt:
.....drop proceeding initiated under section 107 of criminal procedure code - magistrate empoweres to drop proceedings initiated under the act - provided he is satisfied that there is no danger of breach of peace - held, magistrate can drop proceeding depending upon his subjective satisfaction at any stage even after passing an order under section 112. - - on this the magistrate felt satisfied that there was no danger of a breach of the peace and accordingly dropped the proceedings under section 107 criminal procedure code. when on cogent grounds he is satisfied: ' 5. i am in respectful agreement with the view expressed in these two rulings and hold that a magistrate has power to drop proceedings initiated under section 107 criminal procedure code at any stage, as soon as he is satisfied..........under section 107, criminal procedure code but the facts which give rise to such apprehension pass away by lapse of time or happening of other circumstances. in such case when the magistratedefinitely comes to the conclusion that there is no apprehension of the breach of the peace, it would be fruitless to continue any enquiry.'5. i am in respectful agreement with the view expressed in these two rulings and hold that a magistrate has power to drop proceedings initiated under section 107 criminal procedure code at any stage, as soon as he is satisfied that there is no danger of a breach of the peace. there is no illegality in the procedure adopted by the learned s. d. m. in the present case. nor will any harm have been done, even assuming that he is mistaken regarding the.....
Judgment:
ORDER

W. Broome, J.

1. This is a reference by the Sessions Judge of Sultanpur, recommending that an order passed by the S. D. M., Sadar, Sultanpur, dropping proceedings under Section 107 Criminal Procedure Code, be set aside.

2. The proceedings started on 16-5-1962 with an application sent by Asghar Khan (the present petitioner) to the Superintendent of Police, alleging that there was danger of a breach of the peace being committed by Barkat and others (the opposite parties). On 8-6-1962 a police report recommending that action be taken against the opposite parties under Section 107 Criminal Procedure Code was received in the Court of the Sub-Divisional Magistrate, who thereupon passed an order under Section 112 Criminal Procedure Code, calling upon the opposite parties to show cause why they should not be ordered to execute personal bonds with sureties to keep the peace for one year. But when the opposite parties appeared in Court, they submitted a written application assuring the Magistrate that there was no danger of their committing any breach of the peace and that they would settle all their disputes by recourse to the Civil Courts. On this the Magistrate felt satisfied that there was no danger of a breach of the peace and accordingly dropped the proceedings under Section 107 Criminal Procedure Code.

3. The view expressed by the learned Sessions Judge is that once a Magistrate makes an order under Section 112 Criminal Procedure Code, he cannot drop the proceedings but must go on with the case in accordance with the procedure laid down in Section 117 Criminal Procedure Code, which enjoins him to :

'proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.'

In the manner prescribed for summons cases. It seems to me, however, that this is an unnecessarily mechanical and rigid interpretation of the provisions of the relevant sections of the Criminal Procedure Code.

A case under Section 107 starts only when the Magistrate is of opinion that there is 'sufficient ground for proceeding': in other words the initiation of such a case depends on the subjective satisfaction of the Magistrate concerned. The natural corollary to this is that if the Magistrate sees reason to change his mind and on reconsideration comes to the conclusion that there is after all no 'sufficient ground for proceeding', he should be at liberty to drop the case. It is true that there is no provision in any of the sections referred to specifically empowering a Magistrate to drop the proceedings once they have been started; but it seems to me that such a power may legitimatery be inferred.

4. Learned counsel appearing for the petitioner relies on Laxmi Narain v. Emperor : AIR1932All670 ; but this ruling merely lays down that the Magistrate is at liberty to change his mind before issuing notice under Section 112: it affords no guidance on the question of whether the Magistrate has power to drop the proceedings after a notice under Section 112 has been drawn up. There appears to be no Allahabad ruling on this latter question.

In Chatha Ittaman v. State AIR 1953 Trav-Co 24, however, it was observed:

'It cannot be forgotten that proceedings under Section 107, Criminal Procedure Code, 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. When on cogent grounds he is satisfied: that there is no likelihood of a breach of 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 in part.'

And in Sheokaran v. Dulla , a Division Bench of the Rajasthan High Court has ruled:

'Section 117, Criminal Procedure Code, which relates to the enquiry after the order under Section 112 has been read or explained, directs that the Magistrate shall proceed to enquire into the truth of the information upon which action has been taken and to take such further evidence as may he necessary.' But it does not lay down that all the evidence that may be sought to be produced must be recorded by the Magistrate. If, therefore, the Magistrate can come to the truth at an earlier stage, he has jurisdiction to drop the proceedings. Cases are not infrequent where proceedings are started under Section 107, Criminal Procedure Code but the facts which give rise to such apprehension pass away by lapse of time or happening of other circumstances. In such case when the Magistratedefinitely comes to the conclusion that there is no apprehension of the breach of the peace, it would be fruitless to continue any enquiry.'

5. I am in respectful agreement with the view expressed in these two rulings and hold that a Magistrate has power to drop proceedings initiated under Section 107 Criminal Procedure Code at any stage, as soon as he is satisfied that there is no danger of a breach of the peace. There is no illegality in the procedure adopted by the learned S. D. M. in the present case. Nor will any harm have been done, even assuming that he is mistaken regarding the disappearance of the danger of a breach of the peace; for, if that danger should reappear, it will always be open to the police or the persons aggrieved to approach the Court once more for fresh action to be taken under Section 107.

6. This reference is accordingly rejected.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //