ORDER
Anwar Ahmad, J.
1. This application in revision arises out of an order passed by a Magistrate dropping the proceeding under Section 107 of the Code of Criminal Procedure against the opposite party.
2. The facts giving rise to this application are as follows: Pradip Singh, Basant Sharma, Gorelal Singh and Khublal Sharma are full brothers. Khublal Sharma is a teacher in a school at Saidpur. He separated from his brothers about sixteen years ago and was allotted a separate block. The petitioner is the only daughter of Khublal Sharma, is a widow and is working as a mistress in Saidpur Girl’s School. On becoming a widow, she began living with her father, who transferred all his landed properties including his house to her about fifteen years back by means of a registered deed, since then, the petitioner is coming in peaceful possession of the properties transferred to her Opposite Party 3 to 8, who are her uncles and cousins, annoyed on account of this transfer in her favour, have formed a gang to harass her so that she may be compelled to leave the village to enable them to grab her properties.
Some of the members of the opposite party threatened her father and a sanha was lodged at Gopalpur police station on the 18th June 1965. They also threatened her on account of which another sahna was lodged on the 22nd June 1965. The officer in charge of Gopalpur police station found the allegations true and submitted a report before the Sub-divisional Magistrate on the 26th June 1965 for drawing up a proceeding under Sec 107 of the Code against the members of the opposite party. On the 14th July 1965. the Subdivisional Magistrate, being satisfied with the police, report drew up a proceeding under Section 107 against the opposite party and asked them to show cause why they should not be ordered to execute a bond of Rs. 2,000 each with two sureties of the like amount for maintaining peace for the period of one year. The opposite party appeared before the Subdivisional Magistrate filed their show-cause. The records of the case were then received by Mr. T. K. Mishra, Magistrate, first class. on transfer on the ] 6th March, 1966. Mr. Mishra dropped the proceeding by an order dated the 21st March 1966, and it is against this order that the petitioner has come up in revision to this Court.
3. The order of the learned Magistrate is in the following terms:–
“I have perused the Sanhas. It appears that the allegations are specific which come under the purview of the provisions of I. P. C. and for which the complainant can lodge complt. and get the accused persons taken to task. No. specific overt act has been mentioned in these Sanhas. Hence the show-cause petition of the O. P. members are accepted and they are discharged from bail bond. The 1st party may lodge complaint, in the proper court of law for the allegations mentioned in the Sanhas if she so likes.”
4. On a persual of the relevant provisions of the Code of Criminal Procedure, it is clear that the order of the learned Magistrate is bad in the eye of law and has to be set aside. Sub-section (1) of Section 107 of the Code lays down that, when Magistrate is of the opinion that there is sufficient ground for proceeding under this section, he will require the opposite party to show cause as to why he should not be ordered to execute a bond with or without sureties for keeping the peace for a period not exceeding one year as the Magistrate thinks fit to fix. Section 112 lays down that, in case it is necessary to require any person to show cause, an order should be made in writing, setting forth the substance of the information received as well as the full particulars of the bond to be executed by him. If the person proceeded against is not present in Court, the Magistrate shall issue a summons or a warrant under Section 114, requiring him to appear in Court.
Sub-section (1) of Section 117 lays down that, when a person appears or is brought before the Magistrate in pursuance of the summons or warrant issued under Section 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. In the instant case, order-sheets go to show that, on the 14th July 1965. the proceeding was drawn up against the opposite party under Section 107 and bailable warrants of arrest were issued against them and the 12th August 1965 was fixed as the date of their appearance. On the 12th August 1965, the members of the opposite party appeared in Court in pursuance of the order dated the 14th July 1965. The case was transferred to the file of the learned Magistrate, who received the records on the 21st March 1965, on which date, the impugned order was passed dropping the proceeding.
The relevant provisions referred to above make it clear that, when once a party had been brought the Court in pursuance of the order passed under Section 114. the only course open to the learned Magistrate was to proceed to inquire into the truth of the information received upon which action had been taken and to take such further evidence as might appear to be necessary. On the face of it, the order of the Magistrate is bad in law inasmuch as he was not competent to discharge the opposite party under Section 119 of the Code before the conclusion of the inquiry. Once a proceeding under Section 107 is drawn up, the Magistrate can drop the proceeding only when he is satisfied that there is no longer any apprehension of a breach of the peace at the hands of a party or parties proceeded against, vide Mokhtar Ahmad Khan v. Mohammad Amir Khan, 1964 BLJR (S.O.C.) CV and Ishwar Prasad v. Sagar Mal Kejriwal, 1965 BLJR (S. O. C.) XCII. The impugned order does not show that there was no more any apprehension of a breach of the peace at the hands of the opposite party.
5. Mr. K. K. Sinha, learned counsel appearing for the opposite party, has contended that, although the order of the learned Magistrate does not specifically state that there was no more an apprehension of breach of the peace, yet, in effect, the order has been passed on that ground. In the submission of learned counsel, the show-cause filed by the opposite party definitely stated that there was no apprehension of a breach of the peace and, as the Court has accepted that show cause, it should be held that the proceeding was dropped on the ground that there was no apprehension of a breach of the peace. A reference, however to the show-cause filed by the opposite party goes to show that it is not stated therein that there is no apprehension of a breach of the peace.
On- the contrary, the allegations contained therein go to show that there is still apprehension of a breach of the peace not at the hands of the members of the opposite party but at the hands of the petitioner. Therefore, I am unable to agree with Mr. K. K. Sinha and hold that the proceeding was dropped because there was no apprehension of a breach of the peace. Apart from that, the order of the learned Magistrate is under challenge and, to my mind. before a proceeding under Section 107 of the Code can be dropped, there must be a specific finding recorded in the order itself that there is no longer any apprehension of a breach of the peace. There is no such finding in the impugned order. The contention of learned counsel has. therefore, to be overruled.
6. It is next contended that a private party has no locus standi to intervene between the police and the person proceeded against and, as such, in an application against the order passed under Section 107 of the Code, the State must be made a party: but the State of Bihar has not been made a partv to the present application in revision and, as such, the application is not maintainable and ought to be rejected. In this connection, learned counsel has placed reliance on Chatha Ittaman y. State, AIR 1953 TC 24. In that case a revision petition was filed against the order of the Magistrate by which he discharged counter-petitioners 3 to 6 in MC 3 of 1951 of the High Court. The proceeding in that case under Section 107 was started against those persons along with three others to show cause why they should not be bound over to keep the peace.
When the counter-petitioners appeared before trial Court in pursuance of the notice issued to them, they filed an application requesting the Court to drop the proceeding as against them on an undertaking that they would not commit any breach of the peace. The Inspector of police also supported them and filed a report to the effect that there was no likelihood then of any breach of the peace at their hands The petitioner before the High Court, who moved the police to take action under Section 107 against the counter-petitioners, sought to intervene at that stage to oppose the motion. The Magistrate held that the petitioner had no locus standi to intervene and passed orders under Section 119 of the Code discharging counter-petitioners 3 to 6 on the ground that the Court was satisfied that there was no necessity to continue the proceeding as against them. The petitioner moved the High Court against that order.
It was contended before the High Court inter alia that the order of the Magistrate was bad in law. Two points arose for decision in that case : (1) whether the petitioner was competent to file the application in revision and (2) whether the order of the Magistrate was bad in law. It was held that the petitioner not being party to the proceeding before the lower Court, had no locus standi to maintain the application in revision The proceeding was between the state on one hand and the counter-petitioners on the other hand, therefore, the Magistrate’s order refusing to listen to their objection was right and the petitioners right in the High Court was not higher than what he had before the primary court. His Lordship, however, made the following observation so far as the powers of the High Court are concerned:–
“This does not, however, mean that the court should reject the revision on that ground. Section 439, Criminal Procedure Code, which deals with the powers of this Court in revision is couched in very wide terms. It states that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a Court by sections 338 and may enhance the sentence; ….. .The circumstances under which the Magistrate happened to discharge counter-petitioners 3 to 6 have now come to the knowledge of this court, and it is up to this court to examine the legallity of that order. This would appear to me to be the proper approach to the preliminary objection raised by the counter-petitioners.”
7. In the instant case also, the order passed by the learned Magistrate has come to the knowledge of this Court. The proper procedure, as laid down in the reported case itself, would be to examine the legality of the order. Therefore, the second point urged by Mr, K. K. Sinha is also without any substance.
8. In the result, the application is al
lowed, the impugned order passed by the
learned Magistrate is set aside and the case
is sent back to him for disposal in accordance with law in the light of the observations made above.