J.N. Bhat, J.
1. These persons, Faqirulla Khan, Ghularn Hassan Shah and Ghulaoi Haider Shah put in an application f before the Sub-Inspector Police station Bijhama on 29-8-61 against six persons stating therein that Ibrahim Khan had illicit connection with the wives of Hatim and Nassantlla who lived in the same Mohalla as the applicants. The applicants, according to the application, told Ibrahim Khan repeatedly that he should not carry on such illegal activities in their vicinity, which infuriated Ibrahim Khan, who along with the other five non-applicants threatened their lives and property. The applicants therefore prayed the Police Sub-Inspector to take action against the non-applicants to prevent a breach of the peace.
2. The Station House Officer Police station Bijhama prosecuted the six non-applicants under Section 107/151 Criminal P. C. in the Court of the Tehsildar Magistrate first class Uri.
3. The case was presented before the Tehsildar Magistrate on 26-9-61 who adjourned it to 5th October, 1961. On 5th October 61 the Magistrate dismissed the application on two grounds: one, that the Section H. O. was not present, and secondly that there was no ground for proceeding against the non-applicants, as in the opinion of the Tehsildar Magistrate the petitioners before the Sub-Inspector namely, Faqirullah Khan and others had no right to institute proceedings under Section 107 of the Criminal P. C. and it were only the husbands of the two ladies, with whom adultery was being committed by Ibrahim Khan, who could take action in such a case.
4. Against this order of the dismissal of the application by the Tehsildar Magistrate, a revision was preferred before the Addl. District Magistrate Baramulla who has recommended by means of his order dated 31-10-62 that the order of the Tehsildar Magistrate be set aside as being against law and the Tehsildar Magistrate be directed to take further action in the case according to law.
5. I have heard the learned Counsel appearing on behalf of Hatim and others, the non-applicants in the original application under Section 107 of the Criminal P. C. as well as the learned Advocate General.
6. I shall examine both the grounds set out by the Magistrate in his order dated 5th October, 1961. The first point mentioned by him in his order is that the Sub-Inspector did not attend his Court to satisfy the Magistrate about the correctness of the application of Faqirullah Khan and others. From the order-sheet on the file it transpires that there was no direction to the Government Prosecutor by the Court to produce the S. H. O. on the date of hearing, i. e., 5th October, 1961, nor was the S. H. O. summoned by the Court itself. It appears that the Government Prosecutor had directed the S. H. O. to come to the Court on that day. That circumstance by itself would not warrant the inference that the case lodged by the police is false. If the Tehsildar Magistrate was not satisfied with the application presented in his Court under Sections 107/151 of the Criminal P. C. he should have directed the S. H. O. to appear in his Court and if necessary summoned him. The examination of the S. H. O. was necessary before holding that the contents of the application were not correct. No doubt, it is within the powers of a Magistrate to refuse to issue process even on a report being made by a police officer, but ordinarily prevention of a breach of the peace is one of the primary duties of a police officer. And when a police officer is satisfied that there is an imminent danger to public peace and makes a report to that effect to the Court to proceed under law, the report should not be treated so lightly because it is the duty of both the magistracy and the police to see that nobody breaks the law. I do not want to lay it down as an invariable rule of procedure or practice that on every report of a police officer process to the other side should issue. But I would like to state that a Magistrate, though he may be empowered to refuse to issue process, should not ordinarily brush aside the report of a responsible police officer. Therefore on this point I am not satisfied that the order of the Magistrate in refusing to issue process was proper or can be upheld.
7. The second ground taken by the Magistrate is that it is only the husbands of the ladies with whom adultery is being committed that are competent to lodge proceedings under Section 107 of the Criminal P. C. The learned Magistrate seems to be influenced by the provisions of Section 199 of the Criminal P. C, which has no application to the facts of the present case. That section lays down that for offences against marriage it is the husband who can launch a prosecution of adultery, enticing away a married woman or bigamy. But in the present case the proceedings were not to be taken against the adulterer for an offence of adultery, but the violent attitude of the non-applicant party in attempting to create disturbance had necessitated the launching of such proceedings. 1 may add here that I do not mean to state anything about the merits of this case. On facts the allegations of Faqiruallah and others may be correct or false -- that has yet to be decided.
8. Reverting to what I was stating above, the crux of the matter for the initiation of these proceedings was that Ibrahim Khan was committing adultery with the wives of Hatim and Nasarullah. These people live in the vicinity of the applicants. Adultery by itself is an anti-social and an illegal act; naturally any peace-loving citizen and any person of good morals would not like that adultery should be permitted to be indulged in before his very nose. The objection of Faqirullah Khan and others to Ibrahim Khan not to continue his adulterous activities in their vicinity was not only a moral act, but was also a legal act in the sense that it is the duty of every citizen to see that the law is not broken. Therefore the applicants were exercising a legal right in trying to prevent Ibrahim Khan from committing adultery in the house of Hatim and Nasarullah.
9. The learned Magistrate has referred to some paragraph from Chitaley's Criminal P. C. and has quoted there from that
the section must be used to protect persons exercising their legal rights and not to interfere with such rights.
It seems to me that the learned Magistrate is of the opinion that Ibrahim Khan in committing adultery with the two ladies was exercising his legal rights and that Faqiruallah and others, applicants, were interfering with his activities in this direction. All that can be said is that this idea of the Magistrate is not only ridiculous but is far from being legally tenable. No authorities have been cited in support of this proposition, but a very casual perusal of the authorities under this heading would reveal that the provisions of Section 107 are not meant to prevent a person from performing a lawful act in a lawful manner Babu Ram v. Emperor AIR 1932 Lah 101 and Mt. Jasoda Lekhraj v. Emperor AIR 1939 Sind 167 may be perused in this behalf.
10. In AIR 1932 Lah 101 it has been held that the action of a person in doing a lawful act in a lawful manner which injures the susceptibilities of persons of different faiths is not sufficient to warrant proceedings under Section 107 against persons performing legal acts.
11. In AIR 1939 Sind 167 it has been held: 'The word 'wrongful' in Section T07 must mean some thing more than wrongful in the opinion of the Magistrate, and 'wrongful act' must mean some act wrongful according to some law. Section 107 cannot be intended to authorize a Magistrate to take action to prevent lawful acts which may result in a breach of the peace because of the wrongful or unlawful acts of others. Section 107 is intended to be applied against the wrong-doer and mot also against the wronged. It was never the intention of the section that the wrong-doer and the wronged should be classed together as wrongdoers and made the subject of a common complaint and common action....
12. In that case a meeting of the Satsang which was a legal act was objected to by some persons and it was held that the persons holding the Satsang could not be proceeded against under Section 107 Cr. P. C.
13. The mention of the liberty of the subject and the constitutional guarantee for such right are only peroration on the part of a Magistrate and has no bearing to the facts of the present case.
14. In the revision petition before this Court, the learned Counsel for Hatim and others raised an objection that this Court had no power to entertain the revision petition against an order dismissing an application for proceedings under Section. 107 Cr. P. C. The learned Counsel referred to Sub-section 435, 436, 438 and 439 of the Criminal P. C. According to him it was only in a case where a conviction had been recorded on an accused discharged by a Magistrate of an offence that an further, action could be taken with respect to an order passed by the Magistrate, Although the hollowness of this argument is apparent from a bare, reading of the Sections referred to above, yet I would like to say a few words about this aspect of the case.
15. Section 435 of the Cr. P. C. gives the power to the High Court to call for and examine the record of any proceeding before any inferior criminal court within its jurisdiction and satisfy itself about the correctness, legality or propriety of any finding . . . or order recorded or passed by any such lowes Court. The District Magistrate has also been given power to do the same, but if a District Magistrate on a perusal of the record comes to the conclusion that the order or the finding of the trial Court cannot be upheld, he has to report the result of his examination to the High Court. The High Court under Section 439 can exercise any of the powers conferred on a Court of appeal under different sections of the Criminal P. C. This the High Court can do both in cases which it itself examines or which are submitted to it by any District Magistrate or Sessions Judge under Section 438 of the Criminal P. C. Therefore the High Court has clear and unfettered powers, after examining the record of a lower Court in any case, to pass any order it thinks fit -- of course, it must be an order consistent with the provisions of the Code which relate to different sections dealing with appeals as enumerated in Section 439.
16. In a case reported as Crane v. Director of Public Prosecutions (1921) 2 AC 299 it was laid down by Lords Dunedin, Atkinson, Sumner and Parmoor (Viscount Finlay dissenting), that
where the proceedings were a nullity, the Court of Criminal Appeal had the power to quash the proceedings and order that the accused be tried according to law.
17. In a Full Bench case of the Allahabad High Court reported as Empress of India v. Muhammad Jafir ILR 3 All 545 (FB), certain persons were convicted by a Magistrate of the first class for an offence under Section 352 of the L P. C. The case was brought to the High Court by the complainant preferring a petition to it. The High Court (Straight, J.,) ordered that the accused persons be proceeded against for keeping peace. In pursuance of the order of the High Court, the Magistrate issued notice to the accused and ultimately bound them down for keeping the peace. The accused persons applied to the High Court to set aside the order of the Magistrate requiring them to enter into a bond to keep the peace .on the ground that the Magistrate had not proceeded on his own motion, but under the order of Straight, J., which was made without jurisdiction, and on the ground that the summonses had not set forth the report or information on which they -were issued. Stuart, C. J., held that
inasmuch as Straight, J., when he made his order represented the full authority and jurisdiction of the High Court, such order was final, and the application could not be entertained,
18. Pearson, Spankie and Old field, JJ., held that
the order of Straight, J., was one which he was competent to make as a Court of revision.
19. This authority shows that even the High Court can straightway direct that proceedings be taken against a person for keeping the peace.
20. In Emperor v. Sumar AIR 1940 Sind 175 it was held that
In an order passed under Section 117 (3) of the Criminal P. C. the High Court can .interfere where the order is without legal basis, though proceedings under Ch, 8 are quasijudicial.
21. Similarly in Emperor v. Ali Muhammad AIR 1936 Sind 243 it has been laid down that
The High Court will interfere when there is no evidence to justify the finding of the lower Court or when it appears to the High Court that the entire proceedings are so defective that the conscience of the Court is touched or there has clearly been a miscarriage of justice.
22. The argument of the learned Counsel for Hatim and others that this Court has no jurisdiction is therefore meaningless. This Court has clear and ample powers under Section 439 of the Criminal P. C. to seb right any finding or order wrongly passed by a subordinate Court, and as already stated, the entire order proceeds on wrong notions of law and even fantastic conceptions of the Constitution. The order of the Tehsildar Magistrate cannot therefore be upheld.
23. The recommendation of the Addl. District Magistrate Barmulla is accepted and the case is sent back to the Tehsildar Magistrate with the direction that he will proceed in the matter cording to law.