Allah Diwaya had taken on contract from the Town Committee, Khairpur, Tehsil Hasilpur, the right of realization of the octroi fee pertaining to the Octroi Post of the Town. Riaz Ahmad Rahmani was opposed to Allah Diwaya who had been instigating the people not to pay the octroi fee. There existed rivalry between the two and at times resulted in open clashes. The Station House Officer of Police Station Khairpur, submitted two reports against Allah Diwaya and Riaz Ahmad and the members of his part, respectively for taking action under section 107/150 of the Code of Criminal Procedure. The Resident Magistrate, Hasilpur, by his order dated the 22nd of August 1969 summoned the persons mentioned in the report for appearance for being proceeded against under section 107/150, Cr. P. C. Both of them put in two separate petitions questioning the validity of the notices before the learned Sessions Judge who has made this reference for setting aside the order on the ground that the notices issued by the learned Magistrate were violative of the provisions contained in section 112 of the Code of Criminal Procedure.
2. Section 112 of the Code of Criminal Procedure, noncompliance of which by the learned Magistrate has resulted into this Reference by the learned Sessions Judge, is in the following terms :-- "When a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required."
There is no provision for summoning a person complained against under section 107, or sections 108 to 110, Cr. P. C. The notice under section 112, Cr. P. C. is to show cause and not to appear. Since he is to show cause against the action which is proposed to be taken against him, it is necessary that he should be posted with the information which the Magistrate considers sufficient for asking a person to execute a bond. The amount of the bond and the period is to be indicated so that the person concerned may be able to show that the amount is excessive or the period for which the bond is required is not compatible with the situation to overcome which action under section 107 is being taken. In Abdul Karim v. State (1), it was observed: "Under section 112 of the Cr. P. C., the Magistrate is under statutory duty of setting forth the substance of the information received" when he required any person to show cause while acting under sections 107, 108, 109 and 110. The term 'substance of the information' means particulars indicating the grounds on which the information of the Magistrate is based. The object of this requirement is to make the person proceeded against clearly understand what the matter is upon which he has to show cause to afford him reasonable opportunity to ready to meet the case against him." ln Abdul Majid v. Crown (2), the Judicial Commissioner expressed a contrary view holding that it is an essential ingredient of section 112 of the Code that the Order must set forth the substance of the information received, and that if the Magistrate fails so to do, it will be an irregularity not curable by virtue of section 537. It was further observed: "The wording of section 112, Cr. P. C. is clearly mandatory." Rajendra Mohan Das v. Serajul Hoque (3), is a case where the order was quashed on another ground, but at the end of the judgment of the Court a warning was cautioned "that there has not been proper compliance of the provisions of section 112 of the Code of Criminal Procedure and it is hoped that the learned District Magistrate will strictly comply with the provisions of that section and proceed with the case in accordance with law."
The position here is different. The notices issued are being challenged as defective not for the reason that they do not contain all the requisite particulars mentioned in section 112, but are questioned on the ground that the notices were not an order under section 112 and were merely summonses for appearance of the parties in the Court. Thus, the question which is directly arising in the case is whether the absence of an order under section 112 of the Code of Criminal Procedure will make the subsequent proceedings ab initio void.
Section 112 postulates an order in writing, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required. Under section 115, every summons or warrants issued under section 114 "shall be accompanied by a copy of the order made under section 112" and this copy is to be delivered to the person served with the notice, the idea behind it being that the perso proposed to be proceeded against should have the fullest informa tion as to why his liberty is in danger of being interfered with and, if he is in a position to do, to bring evidence to rebut th
(1) PLD 1963 Pesh. 233 (2) PLD 1953 Bal. 24
(3) PLD 1961 Dacca 122 truth of the information against him. Section 113 lays down that if the person is present in Court, the order made under section 112 'shall be read over to him, or, if he so desires, the substance thereof shall be explained to him." lt will, therefore, be abundantly clear that if no order is made as required by section 112, the machinery provided by the Code cannot beset in motion on receipt of a complaint under any or more of section 107, 108, 109 or 110, and a final order made under section 118 in such circumstances will be ab initio void.
A Magistrate of Dacca called upon one Ishwar Chandra Sur to show cause why he should not give security and bail for his good behaviour. The intial order made under section 112 declared that the final order would, if passed "be undfer section 110 of the Code, for one year". After recording the answer of the accused the Magistrate passed the order: "He will furnish Rs. 50 muchulka, and Rs. 50 surety for six months under section 109 of the Criminal Procedure Code, and in default to be rigorously imprisoned for that period, or until he furnish security." The Sessions Judge considering that the order of the Magistrate was bad because no order was recorded in writing by him as directed by section 112 of the Code, forwarded the case to the High Court whereupon the Division Bench of Calcutta High Court in Queen- Empress Ishwar Chandra Sur the order: "We think the Sessions Judge is right and that the order must be set aside." In Krishnaswami Thathiachari v.
Vanamamalai Bhashiakar (2), the Magistrate having arrived at the conclusion that section 110 of the Code of Criminal Procedure with reference to which notice under section 112 had been issued was inapplicable to the case, proceeded to deal with the case as one under section 107 of the Code of Criminal Procedure without first issuing a notice under section 112 with reference to the altered view of the circumstances which he considered sufficient to warrant him in taking proceedings against the accused. It was held that the omission to make such an order was a noncompliance with an express provision of the law, and, therefore, rendered the subsequent proceedings invalid. In that case the order under section 112 for proceeding against the accused under section 110 was there, but it was considered to be an inherent defect in the proceedings which the Magistrate took under section 107 without first making another order under section 112. In Emperor v. Rajbansi (3), the facts were that two persons who had been arrested under section 55 of the Code of Criminal Procedure were brought before a Magistrate on the 9th of September. On that date they were remanded in custody until the 19th of September for the production of evidence, presumably with the object of issuing a notice under section 112. On the 19th of September, the Magistrate, treating the evidence given by the Sub-Inspector as evidence at a hearing under section 110, fixed a further date for the accused to produce their evidence, lt , was held that the procedure was erroneous and that it was only
(2) 30 Mad. 282
(3) 42 All. 646 after an order under section 112 had been made that proceedings under section 110 could take place. In Abdul Majid v. Crown it was observed by the Judicial Commissioner: . . the correct procedure for a Magistrate who takes cognizance under the provisions of section 109, Cr. P. C., is that in the first place, he is bound to make an order under section 112, Cr. P. C. as the case may be."
Again in Crown v. Sultan (1), it was observed by Abdul Aziz, C. J.: "When there was no order under section 112, the Magistrate was incompetent to make his final order uuder para. 1 of section 118".
3. The failure to record altogether an order under section lt 2, Cr. P. C. is different from the failure to specify all the particulars as are required to be incorporated in the order under section 112. Whereas a failure to specify all particulars in the order may be a defect curable if the Appellate or Revisional Court finds-that the person complained against has not been prejudiced and that the failure of justice was not occasioned, the failure on the part of the Magistrate to record an order as required by section 112 on a complaint received under section 107 of the Code of Criminal Procedure will vitiate all the proceedings including the final order under section 118.
4. An order under section 112, Cr. P. C. was not recorded in the case. I would, therefore, set aside the order dated the 22nd of August 1969 of the learned Magistrate. . Order set side.
(1) PLD 1950 B J 83