G.K. Misra, C.J.
1. Petitioner and opposite party belong to the same street in Jeypore town. Petitioner No. 2 is the mother and petitioner No. 3 is the wife of petitioner No. 1. Petitioner No. 7 is the father-in-law of Petitioner No. 1 and Petitioners 4 to 6 are the sons of petitioner No, 7. It is said that about 3.30 p. m. on 13-10-67 the son of petitioner No. 1 pushed a young Sindhi boy riding on a cycle as a result of which he fell down. This took place in hont of the house of the opposite party and the opposite party chided the son of petitioner No. 1. Petitioners 2 and 3 abused the opposite party in insulting language. At about 6.30 p. m. the opposite party was restrained and assaulted in the house of petitioner No. 1. The matter was reported at the police station, but no action was taken. The opposite party thereupon filed a complaint on 19-10-67 before the Magistrate, First Class, Jeypore, alleging commission of certain criminal offences and the same is pending. The inaction on the part of the Police encouraged the petitioners to indulge in further threats and aggression. The opposite party heard petitioners 2 and 3 talking with other females, that the opposite party would be chastised further and ho shall have to run to the police station again. As a result of this the opposite party was unable to stir out of his house. A petition was accordingly filed under Section 107, Criminal Procedure Code to bind down the petitioners as their action created an apprehension of breach of peace. On this petition the learned Magistrate passed the following order on 24-10-67:--
'The petitioner V. V. Chenulu of Maha-ranipeta, Jeypore, files a petition under Section 107, Criminal Procedure Code, along with an application to call on the counter-petitioners (opposite party) to execute interim bonds pending enquiry. From a perusal of the petition I am satisfied that there is likelihood of a breach of peace and this is a case of emergency. Issue notice to the counter-petitioners (opposite parties) fixing 6-11-1967 calling on them to show cause why they should not be bound for a term of six months in a sum of Rs. 500/- each to keep the peace. Also issue notice under Section 117. Criminal Procedure Code to the counter petitioners (opposite parties) to execute interim bonds pending enquiry for a similar amount with one surety each.'
2. On 6-11-67 all the petitioners were present except petitioners 2 and 3 who appeared through an Advocate. After hearing the learned Advocates, the Magistrate directed the petitioners to execute bonds of Rs. 100/- each under Section 117 (3), Criminal Procedure Code with one surety (or alike amount, to maintain peace pending the completion of the enquiry; in default, to be detained for a period of 6 months. Against the learned Magistrate's order dated 24-10-1967 Criminal Revision Petition No. 29 of 1969 was filed by the petitioners before the Sessions Judge, Jeypore, who allowed the revision and made a reference to this Court for quashing the proceedings of the learned Magistrate for non-compliance with the provisions of Sections 112 and 117 (3) of the Criminal Procedure Code. The learned Sessions Judge held that the Magistrate had recorded no reasons in writing and mechanic cally passed the order under Section 117 (3), on the very day he passed the order under Section 112 and in such circumstances he was of opinion that calling upon the petitioners to furnish interim bonds was contrary to law.
3. This reference came up for hearing before Mr, Justice R. N. Mishra. On 4-11-1969 he passed the following order:
'At the hearing, Mr. Murty appearing for the opposite party, brings to my notice a decision of this Court reported in 33 Cul LT 386 = (AIR 1967. Orissa 133), Satyanarayan Gantayat v. State. This decision seems to be running counter to a series of Single Judge decisions of this Court on the subject-matter, It is, therefore, proper to refer this matter to be placed before a Division Bench for a determination as to whether this Single Judge decision should be followed as good law. Since the proceeding arises out of a case under Section 117 (3), Criminal Procedure Code it is proper that the case should be expeditiously disposed of. Place this before my Lord the Chief Justice for fixing an early date for hearing.'
This is how the reference has been heard by this Division Bench.
4. It is necessary at this stage to examine the points that were decided in 33 Cut LT 386 = (AIR 1967 Orissa 133). In that case, the learned Sub-Divisional Officer, on a consideration of the Police report, passed a composite order by which he took action both under Section 112 and Section 117-(3), Criminal Procedure Code. The facts are therefore similar to the facts before us. There two questions were raised before the learned Chief Justice.
(i) Whether a composite order passed both under Section 112 and Section 117 (3) before the persons appeared was within jurisdiction; and
(ii) Whether the order was liable to be quashed because it was not a reasoned order.
The learned Chief Justice answered the first question holding that it was within the jurisdiction of the Magistrate to pass an order under Section 117 (3) on the very same day on which he passed the order under Section 112 and that an order under Section 117 (3) need not await the starting of an enquiry under Section 117 (1). On the second question he held that before passing an order under Section 117 (3) the Magistrate isbound to apply his judicial mind to the facts of the case and give a reasoned order in writing. With reference to the particular facts of that case, however, the learned Chief Justice was of the view that though the order of the learned Magistrate could have been more definite and express, yet the order contained good reasons read in the light of the materials that were present before the Magistrate.
5. The question for consideration is whether on either of these two points there is any other decision of this Court to the contrary.
6. So far as the second point is concerned, the decisions of this Court are uniform. The law is that the Magistrate must apply his judicial mind to the facts of the case, record his reasons in writing, and then call for an interim bond. The interim bond cannot be called upon merely by mechanical application of the mind. Regarding this principle there is no divergence of opinion, _ though Judges have come to different conclusions with regard to the facts and circumstances of each case. The matter was fully discussed in (1966) 32 Cut LT 515, Dibakar Pradhan v. State, where all the previous decisions were noticed. The same view was also taken in 32 Cut LT 742 = (AIR 1966 Orissa 75), Upendra Nath Kanungo v. State and 34 Cut LT 391 = 1968 Cri LJ 844, Udaya Nath Mansingh v. State.
On the second question, therefore our conclusion is that there is no divergence of opinion of this Court and the learned Chief Justice laid down the law correctly in 33 Cut LT 386 = (AIR 1967 Orissa 133). It need hardly be stated that the ultimate conclusion in different cases would depend upon the facts and circumstances of each case. An order under Section 117 (3), Criminal Procedure Code can be passed even on the Police report itself if the Magistrate, after a critical application of his mind, comes to the conclusion that a case of emergency has been made out.
7. On the first question there is no other decision of this Court and 33 Cut LT 386 = (AIR 1967 Orissa 133) ploughs a lonely furrow. The statement in the referring order that it runs counter to a series of decisions is not correct. The learned Advocates for both parties, after full opportunity was given to them for research, did not dispute this position,
8. Though there is no other decision of this Court on the question whether an order under Section 117 (3) can be passed before the commencement of an enquiry under Section 112 (1) there is conflict of authority in the different High Courts in India. In support of his conclusion on the first point the learned Chief Justice in 33 Cut LT 386 = (AIR 1967 Orissa 133) relied on 32 Cut LT 742 = (AIR 1966 Orissa 75) and AIR 1962 Pat 51, Amir Singh v. State. With respect,we must observe that neither of these cases throws any light on this point.
In 32 Cut LT 742 = (AIR 1966 Orissa 75) the order under Section 117 (3) was passed 'after the appearance of the members of' the second party. They appeared on 30-4-1964, though an application was filed by the members of the first party for execution of interim bonds by the second party on 25-4-1964. On 6-5-1964 the parties were heard on the question of execution of interim bonds by the members of the second party. Thus, no notice was issued to the members of the second party calling upon them to execute interim bonds before the commencement of the enquiry, under Section 117 (1). This case does not therefore support the conclusion of the learned Chief Justice.
Similarly, AIR 1962 Pat 51 is also distinguishable on facts. There the contention was that an order under Section 117 (3) can only be passed after the Magistrate has started taking evidence under Section 117 (1), This contention was negatived because an enquiry under Section 117 (1) starts even before taking of evidence. The opposite par- ' ties in that case were not called upon to furnish interim bonds prior to their appearance, under Section 117 (1).
The learned Chief Justice was wrong in placing reliance on the aforesaid two decisions in support of his conclusion on the first point.
9. Before examining the conflict of authorities it would be useful to make an analysis of the relevant provisions and the scheme of the Criminal Procedure Code in Chap. VIII. In this connection Sections 112, 113, 114 and 117, so far as they are relevant, require examination, They run thus:
'112. When a Magistrate acting under Section 307, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.
113. If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.
114. If such person is not present in Court, 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;
Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shail be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such 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 for his arrest
117 (1). When an order under Section 112 shas been read or explained under Section 113to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under Section 114, the Magistrate shall proceed to in quire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary.
(2) Such inquiry shall be made, as nearlyas may be, practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases.
(3) Pending the completion of the enquiry 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 or, in default of execution, until the inquiry is concluded:
* * * * *
10. It would thus appear that when a Magistrate acting under Section 107, Criminal Procedure Code deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any, required.
11. In (1966) 32 Cut LT 515 at p. 516 it was indicated that the expression 'substance of the information' means details of overt acts. Informations cannot stop short at mere generalisation of the nature or such acts. A person should be supplied with the substance of the overt acts for his information though it may not be necessary to give all possible details, The object of this requirement is that the person proceeded against would clearly understand the matter in respect of which he has to show cause. An order under Section 112 is in the nature of a charge and should contain the substantial particulars upon which the information is based.
In (1963) 32 Cut LT 515 at p. 516, the effect of non-compliance with such requirement was also considered. Failure to comply with the requirement was held to be a grave and substantial irregularity and rendered it necessary for the appellate and revisional Courts to carefully scrutinize the proceedings. It was indicated therein that the omission does not however ipso facto, vitiate the proceeding without proof of prejudice. The proceeding would not be one without jurisdiction, but it can be quashed if prejudice is shown to have occurred.
12. Section 113 lays down the procedure in respect of persons present in Court. If the person in respect of whom an order under Section 112 has been made is present in Court, the order shall be read over to him or if he so desires the substance thereof shall be explained to him. If such person is not present in Court the Magistrate shall issue summons or warrant under Section 114. The proviso to Section 114 prescribes for the arrest of persons if a case of emergency is made out. The condition precedent to take action thereunder is that there is reason to fear the commission of breach of the peace, and such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person. In such a case a warrant of arrest may be issued by the Magistrate.
13. The enquiry into the truth of the information starts with Section 117 (1) though the proceeding starts with the order passed under Section 112. A distinction has been kept between starting of a proceeding and commencement of enquiry. The enquiry cannot start unless the person in respect of whom an order under Section 112 has been passed is present in Court, or when he is not present his presence is procured under Section 114. Section 117 (1) expressly lays down that it is only after the appearance oi the person in respect of whom an order under Section 112 has been passed that the Magistrate shall proceed to enquire into the truth of the information upon which action had been taken under Section 112. He would also proceed to take such further evidence as may appear necessary. There is no conflict of view that the proceeding starts with an order passed under Section 112 and the enquiry commences under Section 117 (1) after the appearance of the person proceeded against. The enquiry would also commence even if the person served with a summons under Section 114 does not appear on the date fixed. That will be commencement of an ex parte inquiry.
Section 117 (2) does not throw much light on the question. It merely says that the enquiry shall be made in the manner prescribed for conducting trials and recording evidence in summons cases as nearly as may be practicable.
13A. The crucial expression which has given rise to conflict of judicial opinion is found in Section 117 (3) -- 'Pending completion of the inquiry under Sub-section (1)'. There is no conflict regarding the fulfilment of the other conditions precedent before the Magistrate takes action under Section 117 (3). The other conditions are:
(i) Immediate measures are necessary for prevention of breach of peace or disturbance of public tranquillity, or the commission of an offence or for public safety.
(ii) The reasons are to be recorded in writing.
14. The question is what construction is to be given to the expression 'pending completion of the enquiry' under Sub-section (1). One view is espoused in AIR 1957 Pat 106, Jagdish Prasad v. State. Their Lordships observed thus:
'It is only when the person is present in Court or has been brought before the Court that the 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 only he can direct the execution of an ad interim bond. But before taking recourse to Section 117 (3) 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. An emergency order under Section 117 (3) can only be made when the Magistrate has started to enquire into the truth of the information under Section 117 (1) and in the course of that enquiry he considers that immediate measures are necessary'.
This view is supported by the majority of the High Courts. See AIR 1952 Trav-Co 262, Jallaluddin Kunju v. State; AIR 1955 Andhra 96, In re, Venkatasubbiah; AIR 1958 Raj 349, Luxmilal v. Bherulal and AIR 1969 Pat 369, R. P. Chowdhury v. State.
In support of the contrary view, Mr. Murty cited AIR 1953 Cal 238, Dulal Chandra Mandal v. State and AIR 1959 Mad 339, Thirunavukkarusu v. State. In the Calcutta case the petitioner was present in the Court and on the same day the proceedings drawn up against him under Section 112 were explained to him and thereafter steps were taken under Section 117 (3). Thus, interim bond was called upon to be executed after the commencement of the enquiry. This case throws no light on the point in issue. Similarly, AIR 1959 Mad 339 is not applicable;
The only decision which fully supports Mr. Murthy's contention is 4 Guj LR 490 = 1963 (1) Cri LJ 663, State of Gujarat v. Sama Kasan Sidhik. In 33 Cut LT 386 = (AIR 1967 Orissa 133) the learned Chief Justice did not closely examine the meaning of the expression 'pending completion of the inquiry under Sub-section (1)'. According to the majority view, there must be commencement of an enquiry under Section 117 (1), and Section 117 (3) can be resorted to only thereafter. This analysis puts a narrow construction on the expression. The expression merely fixes the completion of the enquiry as the terminus, after which the power under Section 117 (3) cannot be exercised, and gives a mandate for exercise of the power before the enquiry is completed. As was rightly observed in the Gujarat case, an enquiry which has not beenstarted is also an enquiry which is not completed. The expression also takes within its sweep an enquiry which is not yet commenced but which has been ordered under Section 112. Thus the expression would mean either pending the completion of the enquiry started in pursuance of Section 112 or ordered to be held but not yet started. As it involves a case of emergency, there is no justification for giving a restricted construction to the aforesaid expression. On a plain reading of logical analysis, we are inclined to accept the Gujarat view as laying down the correct law.
15. In support of the majority view, Mr, Rath contended that if a case of emergency arises prior to an enquiry under Section 117 (1), the Magistrate can issue a warrant of arrest under the proviso to Section 114. This argument leads nowhere. The provision for issuing a warrant of arrest in extreme cases of emergency prior to the commencement of an enquiry under Section 117 (1) does not obviate the necessity for calling for an interim bond under Section 117 (3). Issue of warrant of arrest is an extreme step and is not ordinarily resorted to prior to the appearance of the person proceeded against. Calling upon a person to execute an interim bond is less rigorous. Even a warrant of arrest issued under the proviso to Section 114 may be subsequently recalled and an interim bond may be called upon to be furnished after the enquiry was started as sponsored under the majority view. If this is so, it is difficult to imagine why an interim bond cannot be asked to be furnished even prior to the starting of the enquiry. At any rate, the scheme of the Chapter and the plain language of Section 117 '(3) do not justify a narrow construction.
16. We are therefore clearly of opinion that if the other conditions precedent are fulfilled, namely that there is an emergency and that the Magistrate, on application of his judicial mind for reasons to be recorded in writing comes to the conclusion that an interim bond should be furnished, there is no reason why Section 117 (3) would not be made applicable prior to the commencement of the enquiry under Section 117 (1).
Though the learned Chief Justice in 33 Cut LT 386 = (AIR 1967 Orissa 133) did not elaborate this aspect of the matter, we agree with his ultimate conclusion on the first point and hold that it lays down the law correctly.
17. To sum up we hold that both the points that arose for consideration in 33 Cut LT 386 = (AIR 1967 Orissa 386) were correctly decided.
18. We would now examine whether the order passed by the learned Magistrate on 24-10-1967 can be supported on the aforesaid principles. The Magistrate had before him an application filed by the opposite party. Therein all the facts were narrated as to how the opposite party was restrainedand assaulted by the petitioners. The Magistrate, however, did not set forth the substance of the information received by him; , nor did he send a copy of the petition filed before him along with the notice to show cause. The Magistrate does not appear to have applied his judicial mind to the facts of the case, nor did he record his reasons in writing. It is understandable that the reasons need not be elaborate or detailed. All the same the order in writing must show ex facie that the reasons were considered and the Magistrate was satisfied.
On the facts of this case we are of opinion that the Magistrate was not justified in calling for execution of interim bonds. The proceeding under Section 112 cannot however be quashed.
19. On the aforesaid analysis, the reference made by the learned Sessions Judge for quashing the proceeding under Section 117 (3) is accepted while the reference in so far as it relates to the quashing of the proceeding under Section 112, is discharged. It is open to the learned Magistrate to take further steps under Section 117 (3) if the necessary conditions still exist.
20 I agree.