1. This is a reference by the District Magistrate, Sukkur to quash the order passed by the Mukhtiarkar and Ist Class Magistrate, Sheikhupura' discharging the respondents under S. 119; Cr. P. C.
2. There was a dispute between Santomal and others on one side and' opponents Jahamandas and others on the other side over property. Both the parties belong to Sheikhupura'. The S: H. O.
3. Sheikhupura' apprehending breach of peace initiated proceedings against both the parties under section 107, Cr.-P. .C. And after usual investigation moved the Mukhtiarkar and 1st Class Magistrate, Sheikhupura' to proceed against them. The learned Magistrate entertained the proceedings and summoned the parties in both the cases.
4. On, the date of hearing i.e. 6th March 1969 the learned Magistrate passed an order under section 112, Cr. P. C. Against opponents and called upon them to show cause why they should not be bound down to execute to a bond in the sum of Rs. 2,000 with one surety in the "like amount to keep peace for a period of 12 months. The respondents pleaded not guilty and they produced an affidavit of Biland R.I respondent stating therein that, proceedings against them had been instituted to wreck vengeance as the evacuee property worth crores of rupees was being enjoyed by the other party unauthorisedly. One of them, namely, Biland R.I had already filed proceedings under section 107, Cr.
5. P. C. Against the other party before the S. D. M. Miro Khan. It was also stated in the affidavit that Biland R.I did not reside within the limits of the Court.
6. On the basis of this affidavit the learned Magistrate passed the impugned order. On the same day i.e. 6-3-69, discharging the respondents under section 119, Cr. P., C. It is a short order and may be reproduced. It reads as under.
7. "In view of the facts stated above in the affidavit I do not find any cause to proceed with the matter further as the proceedings obviously have been instituted against the respondents to counter balance the action of unearthing the evacuee property taken against the other party by respondent Bilandrai. Besides some of the respondents reside in other Talukas and District Larkana over which this Court has no jurisdiction. I accordingly discharge the respondents under section 119, Cr. P. C."
8. So far the other case was concerned it was allowed to proceed.
9. A revision application was filed by Superintendent Police Sukkur, against the order discharging the respondents before the learned District Magistrate who made the present reference. The learned District Magistrate by his order set aside the impugned order and transferred the case to the Resident Magistrate Ist Class for fresh trial and disposal according to law. The Resident Magistrate, Sheikhupura' on receipt of the R. & P. Pointed out to the District Magistrate that he had no power to order retrial under section 436, Cr. P. C. And consequently the learned District Magistrate made the present reference by letter dated the 30th July 1969. It was pointed out by the learned District Magistrate that the learned Mukhtiarkar and 1st Class Magistrate, Sheikhupura' could not decide the case on mere affidavit of Bilandari Who was one of the persons against Whom the proceedings had been drawn under section 107, Cr. P.C, without examining any witness in the case.
10. The reference was admitted and notices were issued to the respondents. Bilandrai a respondent No. 2 is present and he has been heard while the other respondents are absent. The learned counsel appearing for the State supported the reference.
11. From what has been stated above it .Is plain enough Fiat the order, of the learned Mukhtiarkar and 1st Class Magistrate, Sheikhupura' is not sustainable. It is open to serious objections and cannot be treated otherwise than being condemned. The learned Magistrate ignored the procedure laid down by the Criminal Procedure Code for such inquiries and followed his own procedure which has no sanction of law nor there could be any precedent. It seems clear than the learned Magistrate did not pay thought' to the provisions of section 117, Cr. P. C. Which laid down the procedure regulating the inquiry. Subsection (1) and subsection (2) to section 117 are relevant for the purpose of this case which read as under "(1) When an order under section 112 has beers read or explained under section 113 to a person present in Court, or when any person appears or is brought before Magistrate in compliance with, or in execution of a summons or warrant, issued under section 114, the Magistrate shall proceed to inquire into the truth of the information upon which an action has been taken, and to take such further evidence as may appear necessary. (2). Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and Recording evidence in summons cases."
12. In the present case an order under, section 112, Cr. P. C. Was actually passed and it was the duty of the learned Magistrate to proceed to inquire into the truth of the information upon which the action had been taken. The inquiry had to be made as nearly as may be practicable in the manner for conducting the trials and recording the evidence in the summons cases. These provisions are mandatory and the learned Magistrate had no option but to proceed in accordance with those provisions. After having passed the order under section 112, Cr. P. C. He could not dispose of the case simply oh an affidavit filed by one of the opponents. An inquiry to be held under this section is fully judicial inquiry and all the formalities of a judicial proceeding have to be observed in the inquiry. He afforded absolutely no chance to the prosecutor to establish the allegation which lead been made against the respondents. The complaint which was filed for drazing the proceedings shows that there were as many as 10 witnesses but not a single witness was examined and instead the bare affidavit of one of the respondents was accepted to come to the conclusion that the proceedings were malicious and were filed in order to harass them. I must say that the order of the learned Magistrate is based on no evidence as the affidavit could not be treated to be the evidence in the case. The procedure adopted by the learned Magistrate is practically ex parte and this was not permitted by law. 'The learned Magistrate had no legal basis to come to the conclusion that the proceedings had been instituted to counter balance the action of unearthing the evacuee property taken against the other party by Bilandrai respondent or some of the respondents were residing in other Talukas and District Larkana. He ought to have allowed an opportunity to the opposite-party to substantiate the allegations which had been made against the respondents. This was denied and, therefore, the order of the learned Magistrate suffers from serious infirmities. In this connection it is pertinent to note that both, the cases had been sent up lay the police but the learned Magistrate without holding any inquiry as laid down by section 117, Cr. P.
13. C. Discharged the present respondents while retained the case against the other party. Thus the order of the learned Magistrate not only suffers for want of material on record but apparently is biased and cannot be supported.
14. In the result I allow the reference and quash the order passed by the Mukhtiarkar and 1st Class Magistrate and order that the proceedings drawn against the opponent under section 117, Cr. P: C.
15. Be disposed of according to law.