This application filed under sectin 561-A, Cr.P.C. Has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. The applicants are close neighbours of Mst. Abida Memon, the respondent NO.2. There is dispute between the parties over petty matters and the respondent No.2, apprehended breach of peace at the hands of applicants. She, therefore, made an application to Assistant Commissioner and S.D.M.
Saddar, Karachi, for taking necessary action to avoid a breach of peace. The learned Magistrate called the parties for the purpose of preliminary inquiry and on 17-12-1991 passed an order under section 112, Cr.P.C. Calling upon the applicants to show cause as to why they should not be directed to enter into personal bond in the sum of Rs.5,000 each with one surety in the like amount to maintain peace for a period of one year. It is in these circumstances that the applicants have invoked the inherent jurisdiction of this Court with a prayer that the proceedings pending against them before Assistant Commissioner and .D.M. Saddar, Karachi, may be quashed, as the procedure adopted by him was patently illegal.
3. 1 have heard Mr.Dilawar Hussain, learned counsel for applicants, Mr.Karam Chand Kingrani, learned counsel for respondent No.2, and Mr.Shoukat H.Zubedi, learned A.A.-G. For State. I have also gone through the record of this case carefulIy.
4.Section 107, Cr.P.C., whereunder the proceedings were initiated against the applicants provides as follows:-- Security for keeping the peace in other cases.--(I) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity or do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix.
(2)
(3)
(4)
(5) It is apparent from the language of subsection (1) of section 107, Cr.PC. That it is divisible into three parts, namely:-- (i)Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First.Class is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity or do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity-, (ii)the Magistrate is of the opinion that there is sufficient ground for proceeding, and (iii)he may in the manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping peace for such period, not exceeding one year.
6. There is nothing in subsection (1) of section 107, Cr.P.C. Which specifies what the nature of the information should be. A police, information is in itself a sufficient information on which a Magistrate may act. The information which leads to an action under section 107, Cr.P.C. May be in the form of an application from a private person, but it must be clear and should disclose tangible facts justifying an action against the person complained of. Such an information is, however, not a complaint within the meaning of section 4(l)(h), Cr.P.C. And consequently the procedure provided under Chapter XVI of the Code of Criminal Procedure, 1898, is not to be followed. This question was examined in the case of Tutsibala Rakhit and another v. N.N. Khosal, reported in AIR 1953 Calcutta 109, wherein it was observed:-- "A petition under section 107, Cr.P.C. Is not a complaint and therefore the Magistrate cannot proceed under section 202 or section 204, Cr.P.C. A petition under section 107, Cr.P.C. Is not to be treated as a complaint. A Magistrate under section 107, Cr.P.C. Is not required to examine the complainant far less to examine the person informed against until at a much later stage when he proceeds to act under section 117, Cr.P.C. The proceedings before the Magistrate under section 107, Cr.P.C. Become judicial only from the stage of enquiry under section 117, Cr.P.C. But before that stage is reached and before any notice to show cause is issued under section 112, Cr.P.C. An that is required under section 107, Cr.P.C. Is that the Magistrate must be 'informed' that a person is likely to commit breach of the peace. No hard and fast rule can be laid down about the quality and character of information on which the Magistrate should or should not act. The Magistrate must be left free with a wide discretion in the -matter and it is in my opinion undesirable to fetter the hands of the Magistrate in this respect."
7. In the case of Ghularn Qadir v. Mistry Fazal Din and others, reported in PLD 1962 SC 331, this point was considered, although in different context, but it was made clear that a petition under section 107, Cr.P.C. Is not a complaint within the meanings of section 4 (1)(h), Cr.P.C.
8. The language in which subsection (1) of section 107, Cr.P.C. Is couched makes it clear that the opinion of the Magistrate that there is sufficient ground of proceeding'is a condition precedent for issuing a show--cause notice to the person proceeded against. What in fact should be the basis for such opinion of the Magistrate?, I think, is the primary question. This question was again considered in the case of Tulsibala Rakhit and another v. N.N.Khosal reported in AIR 1953 Calcutta-
109. 1 cannot do better than quoting Their Lordships' observation in extenso:-- "The procedure under section 107, Cr.P.C. Should be clearly understood. The Magistrate on receipt of information may in the manner provided call upon the person informed against to show cause.
That can only be done under section 112, Cr.P.C. The Magistrate can make any enquiry before he issues the notice for showing cause. It is the responsibility of the Magistrate to see that public peace or public tranquillity is maintained. The Magistrate therefore in my view and for that purpose is competent to use the administrative machinery to call for a police enquiry and report before issuing the order to show cause. When he does issue the order, that order must satisfy the tests of sections 107 and 112, Cr.P.C."
9. Applying the above tests to the facts of the present case, I am satisfied that no prejudice appears to have been caused to applicants by the procedure adopted by learned Assistant Commissioner and S.D.M., Saddar, Karachi, which at the most could be said to be irregular.
10. In the result, I see n o substance in this application riled under section 561-A, Cr.P.C. Which is accordingly dismissed.
N.H.Q./N-403/K