1. This Rule was issued at the instance of Mojibar Rahman Mullick, Rahman Sardar and Sayed Ali Mullick, all of village Sonarang, P. S. Tangibari, within Munshiganj Sub-Division. By the impugned order, the Sub-Divisional Magistrate of Munshiganj directed his office (1) to draw up a proceeding under section 107, Cr. P. C. Asking them to show cause why they should not be ordered to execute a bond of Rs. 15,000 each with to local sureties of the like amount each, to maintain peace for the period of one year and (2) to issue warrants for their arrest. By the same order the learned Sub- Divisional Magistrate asked the Officer-in-Charge of Tangibari P. S. Immediately to seize their fire- arms. The last paragraph of the impugned order directs Mr. Hasham, a Magistrate of the Ist Class, to hold an inquiry on the spot regarding the desirability of cancellation of the petitioners' fire-arms.
2. Mr. Ataur Rahman Khan appearing in support of the Rule, at the very outset, drew my attention to the first paragraph of the impugned order which runs as follows:- "Seen petition. Heard. I am satisfied that there is serious apprehension of breach of peace by the O.
3. Ps."
4. Mr. Ataur Rahman Khan next pointed out that although the very petition upon which the learned Sub-Divisional Magistrate passed the impugned order alleged that earlier the petitioners before me had searched for the signatories therein a public meeting attended by them with a view to murdering them, indisputably the meeting had passed of peacefully.
5. Having prefaced his arguments in the manner noticed above, Mr. Ataur Rahman Khan contended that there could be no immediate ground for taking a proceeding under section 107, Cr. P. C., against the petitioners; and that there was a non-compliance of a mandatory provision since the impugned order did not disclose that the learned Sub-Divisional Magistrate had actually formed an opinion that there was sufficient ground for proceeding against the petitioners under the said section. Secondly, Mr. Ataur Rahman Khan contended that the learned Magistrate acted beyond his jurisdiction in directing issuance of warrants of arrest against the petitioners which, in his view, must have been passed in exercise of powers contained in subsection (3) of section 117. He pointed out that subsection (3) of section 177 permitted such a measure only upon due compliance of the provision of section 112 of the Code of Criminal Procedure which requires making an order in writing in the manner specified therein. In the present case admittedly such an order or proceeding having not yet been drawn up, Mr. Ataur Rahman Khan argued that the order directing issuance of warrants of arrest of the petitioners was without jurisdiction.
6. Thirdly, it was contended by Mr. Ataur Rahman Khan that the learned Sub-Divisional Magistrate's directions asking the Officer---in-Charge of Tangibari P. S. To seize the petitioners' fire-arms and Mr. Hasham, the Magistrate, to hold an inquiry as to the desirability of cancellation of the licenses were also without jurisdiction, not being covered by any provision of the Code of Criminal Procedure.
7. The learned Deputy Legal Remembrancer referred to the records which disclose that the petitioners avoided service of warrants already issued against them by the learned Sub-Divi-- sional Magistrate, and further that at no stage the petitioners submitted to his jurisdiction. Nor did the petitioners personally appear in this Court and obtain an order for bail. The learned Deputy Legal Remembrancer contended that in such a state of things the petitioners were not entitled to seek any relief from this Court, being in contempt of the Court of the Sub-Divisional, Magistrate. In this connection he relied upon the case of Chan Shah v. The Crown (PLD 1956FC43). It has been observed in this case that it is an essential condition of the administration of justice, in a case affecting an individual, or individuals, that the persons concerned should "submit to the due process of justice"-.
8. At one stage I was inclined to discharge the Rule on the simple ground that the petitioners obtained it without first obeying the warrants issued by the learned Sub-Divisional Magistrate.
9. Questions relating to the jurisdiction of the Sub-Divisional Magistrate himself to pass the impugned order being the subject-matter of debate before me. I gave a full length hearing to all the parties and reserved my judgment. Presently, I shall have occasion to express my opinion that the concluding portion of the impugned order namely, the direction on Mr. Hasham, a Magistrate, to hold an inquiry into the desirability of cancellation of the licenses of the petitioners' fire-arms was without jurisdiction.
10. Let me now revert seriatim to the points raised in support of the Rule.
11. It is not intelligible to me how it can be said that there has been a non-compliance of the provision of subsection (1) of section 107, Cr. P. C. By the learned Sub-Divisional Magistrate, by reason of his failure to say in terms of the section that he was of the opinion that there was sufficient ground for proceeding under the section. I think that the expression "satisfied" is stronger than the expression being of "opinion". I find no difficulty, therefore in accepting the contention of Mr. Sarajul Haq who appears for the opposite-party Tobarak Majhi that on a perusal of a petition, of which more will be said hereafter, and upon hearing some of the signatories therein the learned Sub-Divisional Magistrate was of the opinion that a proceeding should be drawn up against the petitioners under section 107, Cr. P. C., and he directed accordingly. Nor can it be said that the petition before the learned Sub-Divisional Magistrate related to a complaint confined to an occurrence in connection with a public meeting which had passed of peacefully long before the complaint. It was inter alia,, further alleged therein that the convenors of the public meeting were threatened with death and also that families of several persons had to be shifted to Dacca, with a view to saving their lives. It cannot be said, therefore, that the learned Sub-Divisional Magistrate was not justified, upon the materials before him, in being of the view that a proceeding section 107, Cr. P. C. Was called for in the circumstances of the case.
12. The second point, namely, that issuance of warrants of arrest against the petitioners was without jurisdiction is also of no 4ubstance. Mr. Sarajul Haq the learned Advocate for the opposite-party contended that the warrants were issued not under subsection (3) of section 117 since it was not only that the inquiry under subsection (1) had not yet commenced, but admittedly the proceeding itself, i.e., the order in writing con--templated by section 112 had yet to be drawn up. Mr. Sarajul Huq submitted that obviously the warrants were issued in exercise of powers conferred on the learned Magistrate by the Proviso to section 114, Cr. P. C. Which runs as follows: "Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person the Magistrate may at any the issue a warrant for his arrest."
13. Mr. Ataur Rahman Khan was constrained to concede that he warrants issued against the petitioners were relatable only to the powers under the above Proviso. Mr. Ataur Rahman than, however, took me over again through the impugned order and pointed out that the learned Sub- Divisional Magistrate had failed to "record" in the order the "substance" of the information upon which he was acting. Mr. Ataur Rahman Khan contended that because of the failure of the Magistrate to put in writing the substance of the information upon which he was taking re-course to the Proviso, the warrants issued against the petitioners were without jurisdiction. Mr. Serajul Huq, however, contended that the failure of the learned Magistrate to put in writing the substance of the information was a mere irregularity, and had little to do with the jurisdiction of the Magistrate. In this connection Mr. Serajul Huq relied upon a decision of the Supreme Court reported in Md.
14. Ishaque v. Nur Mahal Begum (PLD 1961 SC 426). This case, no doubt, relates to the provision of subsection (1) of section 145, Cr. P. C. Which confers powers on certain categories of Magistrates to draw up proceedings there-under, on being satisfied from a police report of other information as to the likelihood of breaches of the peace concerning any land or water, upon making an order in writing "stating the grounds" of their being so satisfied. The order of the Magistrate which fell for consideration ran as follows:- "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures are necessary. Start proceedings under section 145, Cr. P. C. The property is attached and O/C Kotwali appointed Receiver. Let party file written statements . . . .--- It was argued before the Supreme Court that no doubt the order of the Magistrate indicated that he was satisfied as to the likelihood of breach of the peace. But yet the impugned order would be without jurisdiction since there was nothing "in writing" therein stating the "grounds" of his being so satisfied", as required by the section. Hamoodur Rahman, J. (as his Lordship then was) in delivering the judgment of the Court observed that there could be no doubt that Magistrates exercising the jurisdiction conferred on them under section 145(1) were expected to comply strictly with the said provision of law, but to say that a failure to follow the prescribed mode must render the exercise of the jurisdiction invalid and illegal was to wide a proposition. His Lordship noticed that there was divergency of judicial opinion on the point; but distinction was made between existence of elements which were essential for the foundation of a jurisdiction and the mode in which such a jurisdiction had to be exercised. The cage under report lays down that the elements necessary for the foundation of a jurisdiction under section 145 of the Criminal Procedure Code are that. The Magistrate must be satisfied:- "(a) that a dispute likely to cause a breach of the peace exists,
(6) that the dispute refers to land or water or the boundaries thereof, and
(c) that such land or water is situated within the limits of his territorial jurisdiction.
15. If the above elements exist, his Lordship has observed they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order; and if after having thus validly acquired jurisdiction the Magistrate does not strictly comply with the other requirements of the section as to the form of the order and does not state in writing the grounds of his being so satisfied, then the order would no doubt be defective but that would not make the order without jurisdiction.
16. Here, in the instant case Mr. Ataur Rahman Khan's complaint was not that the warrants were issued without con--sidering if the alleged breach of the peace could "not be prevented otherwise than by immediate arrest" of the petitioners which would be the foundation of the jurisdiction to issue warrants of arrest. In fact, the impugned order has recorded a satisfaction to the said effect. Mr. Ataur Rahman Khan's complaint was that while issuing the warrants the learned Sub---Divisional Magistrate did not put in writing the substance of the information on which they were issued. The petition, however, was before the Sub-Divisional Magistrate. The opening sentence of his order shows that he perused the petition and heard some of the signatories, who were 142 in number and include several Chairmen and Members of the local Union Councils and also Advocates of this Court. There is also an M. B. B. S. Doctor and a B. So. Engineer. In their petition there is no prayer for a proceeding under section 107, Cr. P. C. It is, however, clearly stated therein that families had to be shifted to Dacca and that the petitioners before me were threatening all and sundry in the locality with death. It is also stated therein that it was believed that the petitioners used to help vetern criminals with that fire-arms in committing offences at night, and it was due to their petronage that crime in the Sub-Division and neighbouring areas had increased. The prayer in this petition was for seizure of the present petitioners' fire--arms and for cancellation of their licences. The learned Sub---Divisional Magistrate, however, passed the impugned order inter alia directing the office, as earlier noticed, to draw up a proceeding under section 107 of the Code of Criminal Procedure. It appears that almost simultaneously Tobarak Majhi (opposite --party in this Rule) presented another petition before the learned Sub-Divisional Magistrate making a specific prayer for drawing up a proceeding under section 107, Cr. P. C. The learned Sub Divisional Magistrate made an endorsement on this petition (which was directed to be tagged to the earlier petition by 142 persons) stating that such a proceeding had already been taken. In, view of the opinion expressed by their Lordships of the Supreme Court in PLD 1961 SC 426, 1 find no substance in the second contention of Mr. Ataur Rahman Khan.
17. Let me now deal with the third contention raised in support of the Rule. It relates to the directions (1) on the Officer-in-Charge of Tangibari P. S. To seize the petitioners' fire--arms and (2) on Mr. Hashem, a Magistrate of the 1st Class, to hold an on the spot' inquiry on the desirability of can-- cellation of the petitioners' fire-arm licenses. Mr. Ataur Rahman Khan submitted that each of these directions was without jurisdiction, no such powers either of series of seizure of fire-arms or of cancellation of licenses having been conferred on the Sub-Divisional Magistrate by section 107, Cr.
18. P. C.
19. The learned Sub-Divisional Magistrate stated in his order that he was satisfied on a perusal of petition before him and upon hearing some of the signatories that breach of the peace could not be prevented otherwise than by the immediate arrest of the opposite-parties, in the same breath he asked the Officer-in-- Charge of Tangibari P. S. To seize the fire-arms. It can very well be presumed, in the circumstances, that a firm impression that he gathered from the petition as well as upon hearing some of the signatories that breach of the peace could not be prevented unless the present petitioners were arrested and their fire-arms were seized. In this connection, let me refer again to the allegations in the petition before the learned Sub-Divisional Magistrate to which I have already alluded earlier in this judgment. I am satisfied that those allegations do furnish the foundation for a belief that the alleged breach of the peace could not be averted except by seizure of the petitioners' fire---arms which could not be left in their possession without dange to public peace. For the relevant direction on the police, namely, the Officer-in-Charge of Tangibari P. S. One has to refer to section 25 of the Arms Act, which runs as follows :- "Whenever any Magistrate has reason to believe that any person residing within the local limits of his jurisdiction has in his possession any arms, ammunition or military stores for any unlawful purpose, or that such person cannot be left in the possession of any such arms, ammunition or military stores without danger to public peace, such Magistrate, having first recorded the grounds of his belief, may cause a search to be made of the house or premises occupied by such person or in which such Magistrate has reason to believe such arms, ammunition or military stores are or is to be found, and may seize and detain the same; although covered by a license, in safe custody for such the as he thinks necessary.
20. The search in such case shall be conducted by, or in the presence of a Magistrate, or by, or in the presence of, some officers specially empowered in this behalf by name or in virtue of his office by the Central Government."
21. It will appear from the section of the Arms Act quoted above that if any Magistrate has reason to believe that arms etc. In the possession of any person residing within the local limits of his jurisdiction cannot be left in possession thereof "without danger to public peace" such a Magistrate having recorded the grounds of his belief may seize and detain those fire-arms etc. Although covered by licences. It is true that, in so many words, the learned Sub-Divisional Magistrate has not recorded the grounds of his belief that the arm cannot be left in the possession of the petitioners without danger to public peace. But I have already referred to the allegations furnishing the foundation for such a belief. The principle laid down in the above Supreme Court case (PLD 1961 SC 426) is equally applicable here, so that there can be no to opinions on the question of jurisdiction of the Sub-Divisional Magistrate to pass the direction for seizure of the petitioners' fire-arms by the Officer-in-Charge of a police station. It was not disputed that so far as this Province is concerned a police officer not below the rank of Sub-Inspector could make the search under the second para. Of the section: See Bengal R. And O. Arms Manual, 1925, No. 83 which is applicable in East Pakistan.
22. The impugned order has directed the Officer-In-Charge of the Police Station to discharge the said duty. I find, therefore, no reason to think that the direction for seizure of fire-arms is without jurisdiction.
23. It was however, contended by Mr. Ataur Rahman Khan that the order as to seizure of fire-arms should have been passed on a separate file since, in Mr. Ataur Rahman Khan's view, an order under section 25 of the Arms Act was an administrative order. I am not at all impressed by this con-- tention. A Magistrate cannot look on passively upon being informed that persons owing fire-arms are threatening others with use of the said arms against them. I do not think that an order under section 25 of the Arms Act is always to be treated as an administrative order. It is difficult, at times, to draw a line between an administrative order and a judicial order. But regard being had to the language of section 25 of the Arms Act which speaks of "danger to public peace", I am of the opinion that this section of the Arms Act is available in connection with proceedings under section 107, Cr. P. C. I feel that seizure of arms in circumstances as in the present case can very well be passed in connection with judicial duties of the Sub-Divisional Magistrate relating to public peace.
24. The contention assailing the direction for seizure of arms must accordingly fail.
25. I find substance, however, in Mr. Ataur Rahman Khan's objection relating to the direction on Mr. Eashem, a Magistrate, for holding an inquiry, with a view to examining the question as to desirability of cancellation of the petitioners' fire-arms licenses. Seizure of fire-arms itself can prevent their use, and cancellation of licences cannot advance the cause for which persons apprehending breach of the peace come to Court. Besides, cancellation of licences is dealt with in section 18 of the Arms Act which confers the power of cancelling and suspending licences on District Magistrates and certain other officers. So far as the Courts are concerned, this power has been given to Judges and Magistrate, by clause (b) of section 18, only upon o conviction of an offence against the Arms Act or the Rules made thereunder. Obviously, therefore, the order directing another Magistrate to inquire into the question of desirability of cancella--tion of the licences by the Sub-Divisional Magistrate is without jurisdiction. I would therefore, set aide this direction of the learned Sub-Divisional Magistrate which is contained on the last paragraph of the impugned order.
26. The Rule is accordingly discharged with this modification of the impugned order that the last paragraph thereof is deleted.