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Wazed Ali Khan Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal792,(1914)ILR41Cal719
AppellantWazed Ali Khan
RespondentEmperor
Excerpt:
transfer - application for adjournment to move the high court for transfer--'criminal case' meaning of--proceedings for security to keep the peace--criminal procedure code (act v of 1898) sections 107, 526(8). - .....petitioners in this case have been ordered to execute bonds with sureties under section 107 of the code of criminal procedure to keep the peace. at the trial of the case they applied to the magistrate, before the examination of witnesses had commenced, for an adjournment under clause (8) of section 526 of the criminal procedure code to enable them to move this court for a transfer. the application was refused for the reason that proceedings under section 107 were not governed by clause (8) of section 526, and the magistrate proceeded to try the case. the prosecution examined 11 witnesses but the petitioners declined to cross-examine them, the claim being that the petitioners were entitled to an adjournment under the law. when called upon to enter on their defence, for the same reason.....
Judgment:

Imam and Chapman, JJ.

1. The petitioners in this case have been ordered to execute bonds with sureties under Section 107 of the Code of Criminal Procedure to keep the peace. At the trial of the case they applied to the Magistrate, before the examination of witnesses had commenced, for an adjournment under Clause (8) of Section 526 of the Criminal Procedure Code to enable them to move this Court for a transfer. The application was refused for the reason that proceedings under Section 107 were not governed by Clause (8) of Section 526, and the Magistrate proceeded to try the case. The prosecution examined 11 witnesses but the petitioners declined to cross-examine them, the claim being that the petitioners were entitled to an adjournment under the law. When called upon to enter on their defence, for the same reason they declined to examine their witnesses. The Magistrate then made an order binding them to keep the peace. Against that order they moved this Court and obtained this Rule on the ground that the Magistrate had erred in law in holding that Clause (8) of Section 526 had no application to cases under Section 107.

2. On behalf of the Crown it has been contended that a proceeding under Section 107 is not a 'criminal case' and inasmuch as Clause (8) of Section 526 refers to 'criminal case or appeal' it cannot be said to apply to a proceeding under Section 107. We cannot accede to this argument. It is true that every case that is governed by the Code need not necessarily be a 'criminal case,' but it does not from that follow that only such cases are 'criminal' as relate to offences already committed or said to have been committed. Under Section 107 a Magistrate is empowered in his discretion to detain a person, who is the subject of the proceeding, in custody until the completion of the enquiry. The Code further provides that if a person ordered to keep the peace does not give the necessary security, he shall suffer simple imprisonment for the period laid down in the order. Such being the provisions of the Code we cannot, in the absence of a legislative definition of the phrase 'criminal case,' hold that a proceeding under Section 107 is not a 'criminal case.' In our view, cases under Section 107 are subject to the application of Clause (8) of Section 526, and the Magistrate erred in refusing the adjournment sought.

3. This Rule, therefore, is made absolute and the order binding the petitioners to keep the peace is set aside. We, however, desire to remark that if in the opinion of the Magistrate there is still apprehension of a breach of the peace between the parties, it is open to him to adopt such preventive measures for the preservation of peace as he thinks proper under the law.


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