1. The petitioner in this case is Baboo Dinonath Mullick. He has obtained a rule to show cause why certain proceedings taken by the Deputy Magistrate of Bongong, under Section 107 and the following sections of the Criminal Procedure Code, should not be set aside so far as they affect the petitioner. The principal ground on which it is contended that those proceedings are illegal is this: it is said that under Section 107, the Deputy Magistrate had no jurisdiction to take such proceedings against a person who was not in any sense personally within the jurisdiction of that Deputy Magistrate.
2. The construction of the section taken by itself may not be wholly free from doubt. It is not very clearly worded: and it might perhaps be capable of two constructions. It might perhaps be read as meaning that where a Magistrate receives information that any person, wherever that person may be, is likely to commit a breach of the peace within the local limits of such Magistrate's jurisdiction, he may take proceedings. On the other hand the jurisdiction of the Magistrate is ordinarily confined within local limits, and this is a personal jurisdiction, that is to say, not a jurisdiction for punishing offences, but a jurisdiction for restraining persons from committing offences. It may well be said that the section should be read, with reference to that primary rule, that the Magistrate's jurisdiction is local; and that the words, 'where a Magistrate receives information that any person is likely to commit a breach of the peace within the local limits of his jurisdiction,' apply only to any person subject to his jurisdiction. Speaking for myself personally I should from the words themselves alone be disposed to think that the narrower construction of the words is the correct one. It is, we think, certainly the one most in accordance with convenience. The wider construction would empower any Magistrate in any part of India, who receives an ex parte information that a breach of the peace is likely to be committed within his jurisdiction by any person in any part of India, to require the attendance of that person from any part of India in his Court. That would be a very great hardship and a wholly unnecessary hardship, because the last part of the section provides that, whenever a breach of the peace is likely to be committed proceedings may be taken against any person in the district in which he is. Considerations of convenience therefore are in favour of the narrower construction.
3. The authorities also support that view. We have been referred to two cases: the first case is In the matter of the petition of Jai Prakash Lal I.L.R. 6 All. 26 in which the point was considered by a Full Bench of the Allahabad Court, and they came to the conclusion that the 'Magistrate has no jurisdiction to take such proceedings against a person who is not within the local limits of his jurisdiction, The same question appears to have been considered by a Division Bench of this Court in a case for revision under Section 435, Code of Criminal Procedure, In the matter of the petition of Rajendro Chunder Roy Chowdhry I.L.R. 11 Cal. 737 and the same construction appears to have been put upon the section. We think it right to follow these decisions, On that ground in our judgment the whole of the proceedings, so far as they affect Baboo Dinonath Mullick, are without jurisdiction and must be set aside.
4. We think it right to add that had we come to the conclusion that there was jurisdiction, we should still be of opinion that that jurisdiction had not been judiciously exercised. We can find no sufficient materials before the Deputy Magistrate tending to involve Baboo Dinonath Mullick himself in any matter pointing to a breach of the peace. Therefore proceedings ought not to have been taken against him.
5. Further, having regard to the fact that the person against whom proceedings were taken was at a distance, and that there was no special circumstance making his personal attendance necessary, it appears to us that it would have been a very unwise exercise of jurisdiction to require him to appear personally, seeing that the Magistrate had power under Section 116 to allow him to appear by a pleader.
6. The whole of the proceedings of the Deputy Magistrate will be set aside so far as they affect the petitioner.