D.N. Das Gupta, J.
1. This Revisional petition is directed against the order of the learned Sub divisional Magistrate of Kalna discharging the opposite parties obviously under Section 119 of the Code of Criminal Procedure.
2. An application for drawing up proceedings under Section 107, Criminal P. C., was made by the petitioner-first party on the 30th July 1963. Proceedings under Section 107, Criminal P. C., were drawn up on the 30th August 1963, On 16th March 1964 cause was shown by the opposite parties. The first party made a prayer for an order under Section 117 (s), Criminal P. C. The learned Magistrate adjourned the case to the 31st March 1964 for evidence. On the 31st March 1964 the petitioner did not adduce any evidence but made a prayer for time and for calling for certain records. The case was adjourned to 21st July 1964. On that date the petitioner filed certain documents and again made a prayer for an order under Section 117 (3), Criminal P. C. The learned Magistrate thought that the petitioner should adduce some evidence before he could pass an order under Section 117 (3), Criminal P. C. The case was adjourned to 26th May 1964 for evidence. On the 25th May 1964 the petitioner made a prayer for shifting the date of hearing. It appears from the petition filed by the petitioner before the learned Magistrate that he was indisposed and that he would require at least one month to enable him to be present in Court and to adduce evidence. The case was adjourned to 6th July 1964. Again the case was adjourned to 31st July 1964. On that date the case had to be adjourned to 8th September 1964 as the Trying Magistrate was on leave. On the 8th September 1964 the learned Magistrate made an order that the petitioner had not produced any witnesses and that there were no materials on which the learned Magistrate could pass an order under Section 117 (s), Criminal P. C. The cage was again adjourned to 29th October 1964 for evidence. On that date the opposite parties were present but the petitioner was absent and the learned Magistrate made the order complained against. This Revision petition is directed against that order which is quoted below:
1st party takes no step. Ist party had all along been represented by lawyers, No tadbir on their behalf or on behalf of the prosecution. No P. W. present. Prosecution should therefore fail for non-prosecution. O. P. (6) are discharged.
3. Mr. Chatterjee, learned Advocate for the petitioner contends that the language of Section 119 is very clear and that the persona proceeded against under Section 107, Criminal P. C., can be discharged only if on an enquiry under Section 117, Criminal P. C., it is not proved that it is necessary for keeping the peace that the persons should execute bonds, Mr. Chatterjee's contention is that since no evidence was recorded in the case the requirements of Section 119 were not complied with and the learned Magistrate had no materials before him to come to any finding regarding the 'proof as stated in Section 119, Criminal P. C. Mr. Chatterjee has also contended that the provisions of Section 247, Criminal P. C., are not applicable to a case under Section 107, Criminal P. C. Now I shall assume that Section 247 is not attracted but it is abundantly clear on an examination of the records that the petitioner was determined not to adduce evidence in this case and, there, fore, in those circumstances, the learned Magistrate was wholly justified in discharging the opposite parties under Section 119, Criminal P. 0. The fact that no evidence was adduced by the petitioner would lead to the conclusion that it was not proved that it was necessary for keeping the peace that the opposite parties should execute bonds. Evidently that was the basis of the learned Magistrate's order. The point that arises for consideration in the instant case is covered by a Bench decision of this Court reported in : AIR1927Cal343 , Asrafali Saiyal v. Nasu Sarkar. In that case also after some adjournments the persons proceeded against under Section 107 were discharged on the ground that the petitioner was absent and no P. Ws. were present. Their Lordships observed in their judgment as follows ;
What the Magistrate is required to do under Section 117 (1), Criminal P. C., is to proceed to enquire into the truth of the information upon which action has been taken. In the present case we may suppose that the Magistrate proceeds to enquire into the truth of the information and no evidence having been produced before him he holds under Section 119, Criminal P. C., that it is not proved that the person in respect of whom enquiry is made should execute a bond. This is a procedure which the Magistrate is entitled to follow in the absence of any evidence on behalf of the complainant or the petitioner in the case. According to the view taken by the Sessions Judge the accused has no remedy if the complainant does not choose to appear before the Court to substantiate his allegation nor has the Magistrate any power to discharge the accused under these circumstances. We are therefore of opinion that the order passed by the trying Magistrate discharging the accused was an order which could be properly passed under Section 119, Criminal P. C.
4. On the facts of this case I feel bound by the Bench decision of this Court.
5. Mr. Chatterjee relies on a decision of Travancore-Cochin High Court reported in 1954 Cri L J 211 : AIR 1954 Trav. Co 139, Kunju Asari Nanu Asari v. Sanku Aaari Thakappan Asari. It was observed in that judgment as follows:
In the nature of the proceedings, the Magistrate could not drop them or dismiss the same for the mere default of the complainant. The Magistrate has to be satisfied that it is not proved that there are justifiable grounds for ordering the counter-petitioners to execute bonds to keep the peace and if so he has to record that fact and on the basis of that finding, he can pass an order discharging the counter-petitioners. The order of the Magistrate does not show that he had directed his mind to this aspect as required by Section 119. Hence the order as it stands cannot be sustained.
6. Having regard to the Bench decision of this Court cited above, I would express my dissent. Following the Bench decision of this Court I would hold that the learned Magistrate was justified and was within his jurisdiction in passing an order discharging the opposite parties under Section 119, Criminal P.C.
7. The revisional petition is rejected and the rule is discharged.