1. This rule was issued on 30th April 1937 calling upon the District Magistrate of 24 Parganas to show cause why the proceedings complained of should not be set aside or, in the alternative, the order of transfer of proceedings to the Police Magistrate quashed or such other order or further orders made as to this Court may seem fit and proper. The proceedings referred to are proceedings under Section 107, Criminal P.C. It appears that proceedings under Section 107, Criminal P.C. were started on a petition filed before the Subarban Police Magistrate of Alipur on 11th September 1936, by one Hasanera Begum against certain persons named in the petition of complaint, Hamid, Nazir, Wazid, Soleman and five or six other Goondas whose names are not known. The 'Police Magistrate before whom the petition of complaint was filed on 11th September 1936, sent the same to the Police Officer in charge of section S' for enquiry and report by 18th September 1936. A report was submitted by the police on 2nd October 1936. On that report the Police Magistrate was satisfied that there was a ease against the petitioner before this Court and passed an order to draw up proceedings against him under Section 107, Criminal P.C.
2. At one stage the case came up before this Court and in the order passed on 1st February 1937, discharging the rule issued by this Court, an observation was made that the petitioner could-go to the District Magistrate of 24 Parganas who was in a position to decide the question of jurisdiction of the Police Magistrate to initiate proceedings as was raised in the case. The case then came before the Additional District Magistrate of 24 Parganas and he decided the question of jurisdiction by the judgment recorded by him on 24th April 1937. The Additional District Magistrate held that the proceedings under Section 107, Criminal P.C. as started by the Police Magistrate were without jurisdiction. The learned Additional District Magistrate however on his own initiative took proceedings against the petitioner in accordance with the provisions of Section 107, Sub-section (2), Criminal P.C. The proceedings initiated by the Additional District Magistrate were, under his orders, transferred to the Police Magistrate of Alipur for disposal. This rule as issued on 30th April 1937 was directed against the orders aforesaid passed by the Additional District Magistrate of 24 Parganas on 24th April 1937. There is no question that the Additional District Magistrate had jurisdiction to take proceedings under Section 107 (2), Criminal P.C. The question for consideration is whether there were materials before the Additional District Magistrate on 24th April 1937, on which such proceedings could be based. The materials on which the Magistrate was prepared to act were those supplied by the petition of complaint filed by Hasanera Begum on 11th September 1936 and the police report dated 2nd October 1936.
3. The law as it stands provides for a proceeding under Section 107, Criminal P.C. being started on information received if in the opinion of the Magistrate there is sufficient ground for a proceeding. The Magistrate has, under the law, to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquillity as mentioned in Section 107, before taking action. The object of the provisions contained in Section 107, Criminal P.C. is prevention and not punishment of offences; it is intended not to punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion a breach of the peace: see in this connexion the cases in Srikantha Nath Shaha v. Emperor (1905) 9 CWN 898, Emperor v. Jiwan Singh : AIR1930All408 and Shadi Lal v. Emperor (1931) 18 AIR Lah 191.
4. On an examination of the case before us from the above standpoint the order directing the initiation of a proceeding under Section 107, Criminal P.C. by the Additional District Magistrate may be supported under the law. But before any action was taken and a proceeding drawn up and a direction given for the transfer of the proceeding to the Police Magistrate as was done by the Additional District Magistrate in the case before us, he should have, in our judgment, satisfied himself that the cause for initiation of a proceeding which existed on 2nd October 1936 as disclosed in the police report, still exists or in other words, the learned Additional District Magistrate must hold that there was sufficient ground at present, for a proceeding under Section 107, Criminal P.C. It was, in our judgment, necessary for the Additional District Magistrate to refer the petition of complaint filed by Hasanera Begum on 11th September 1936, to the police for further enquiry and report. In the above view of the case before us the orders against which this rule was directed are set aside; and we send the case back to the Additional District Magistrate for proceeding in accordance with law in the light of the observations made in this judgment.
5. I agree.