' This is an application under section 435 read with section 439, Cr. P. C. And section 561-A of that Code praying for the quashment of the proceedings initiated against the applicant herein by the learned S. D. M., Dadu, under section 110, Cr. P. C.
' The proceedings in question were initiated by the learned Magistrate on information laid before him by S. H.
0. Thariri Mohabbat P. S. To the effect that the applicant herein is a notorious and habitual thief, is in the habit of disposing of stolen property against bhung and that he commits thefts himself as also with the help of other thieves. The learned Magistrate passed an order under section 112, Cr. P. C.
Against the applicant herein on the very day that the information was laid before him and the applicant was produced before him and remanded the applicant to custody for want of sureties, apparently treating the order under section 112, Cr. P. C. As an order requiring the execution of an interim bond or possibly considering the proceedings against the applicant to be taken as criminal proceedings and the applicant to be an accused. The applicant challenged the proceedings against him before the Sessions Court Dadu, but the learned Sessions Judge dismissed his revision application. The contention that the mandatory requirements of section 112, Cr. P. C. Had been infringed in that the order passed by the learned S. D. M. Under the said section contained certain allegations which were not found in the information laid before him by the police was dismissed by the learned Sessions Judge with the observation that this on the contrary suggested that the learned S, D. M. Had applied his own mind to the case of the applicant. The next contention that the applicant was illegally remanded to custody without an order under section 117 (3), Cr. P. C. Having been passed against him and that the learned Magistrate had arbitrarily declined to accept the sureties offered by the applicant was brushed aside by the learned Sessions Judge on the ground that the remedy of the applicant lay in going in appeal under section 406-A, Cr. P. C. To the District Magistrate. On merits too the learned Sessions Judge did not consider that any good ground was made out for interfering with the proceedings pending against the applicant before the learned S. D. M. In these circumstances, the applicant has approached this Court for redress.
3. The proceedings against the applicant have been assailed on the grounds- (a)that the requirements of section 112, Cr. P. C. Have not been fulfilled inasmuch as instead of the order under that section containing the substance of the information laid before the learned Magistrate, it contains certain allegations and accusations of which no mention whatsoever has been made in the report by the police; (b)that the applicant was illegally remanded to custody without an order under section 117 (3), Cr.
P. C. Having been passed against him;
(c) that the allegations against the applicant in the report of the police are vague, stereotyped and practically a reproduction of clauses (a), (b) and (c) of section 110, Cr. P. C.; and (d)that the proceedings against the applicant have been pending for about three years, during which period there have been about 30 hearings, but not a single witness has so far been examined against the applicant.
4. The first contention is based on the fact that the order under section 112, Cr. P. C. Recites that the applicant "run a pathari and gives shelter to other criminals" which allegations do not find place in the information laid by the police before the learned Magistrate. This defect in the order suggests that the learned Magistrate has passed a routine order without really examining and considering the report of the police. Section 112, Cr. P. C. Requires that a Magistrate must set forth in his order the substance of the information on which he purports to act. The object of this requirement is to enable the person being produced against to meet the case against him. The order under section 112, Cr. P. C. May thus be compared to a charge against a person accused of an offence and should, therefore, b carefully drawn up. This, however, does not mean that an irregularity in an order under section 112, Cr. P. C. Will result in the proceedings being nullified unless the irregularity is so grave and substantial that the person being proceeded against is prejudiced in his defence. In Emperor v. Alisher Dost Muhammad (1) it was held that "though a mere repetition of the clauses of section 110 does not satisfy the provisions of section 112, for the purpose of section 112 is to give the accused notice of the case he has to meet, and a mere repetition of some of the clauses of section 110, Criminal Procedure Code, does not do this," it does not mean that "the proceedings as a result {{FOOT NOTE}}
(1) AIR 1939 Sind 261 {{FOOT NOTE}} are nullified" unless it be shown that the accused has thereby been prejudiced. Similar view was taken by the Madras High Court in Ranga Reddi v. Emperor (1). In the instant case there is nothing to indicate that the applicant has been prejudiced by the error in the order under section 112, Cr. P.
C.
5. As regards the second ground on which the proceedings against the applicant have been assailed, it has been repeatedly emphasised by the High Courts that a person being proceeded against under Chapter VIII, Cr. P. C. Is not a person accused of an c ftence and as such he cannot be remanded to custody or required to furnish interim bond pending the completion of the proceedings against him unless an order is passed against him under section 117 (3), Cr. P. C. The requirements for the passing of such an order are, firstly, that the Magistrate must consider that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or are required for the public safety, and secondly, the Magistrate must record his reasons for passing such other. Such an order is not to be passed in routine, as an appendage to an order under section 112 or on the mere application of the Police or other person but has to be based on tangible evidence whether such evidence is tendered in the main proceedings against the person concerned or has been tendered solely for the purpose of obtaining an emergent order under section 117 (3). In this behalf I would refer to the following observations in The State v. Mubarik (2) with which observations I am in entire agreement:- "The power vesting in a Magistrate under section 117 (3) for passing interim order of security is dependent upon his considering that immediate measures are necessary for prevention of breach of peace, disturbance of public tranquillity, commission of any offence, or for the public safety. It is the requirement of law that the reasons must be recorded for passing such order. An order under this subsection is not a mere routine order under section 112, but is designed to meet a substantial emergency and accordingly, the Magistrate must apply his judicial mind to the consideration of the material placed before him on the basis whereof such order is sought."
6. Coming now to the third ground of attack on the impugned proceedings, it may be pointed out that an order under section 112 is not to be passed automatically on lodging of information or report by the police or any other person under Chapter VIII Cr. P. C. But is only to be passed where the Magistrate is of opinion that there is sufficient ground for proceeding against the person informed against. The Magistrate can reach this opinion only on an examination of the information laid before him. The information thus should be of such a nature and contain such particulars and details that the Magistrate can reasonably form the opinion that there is need for taking proceedings. Mere vague and general allega tions against a person that he is a habitual robber, house-breaker, thief, receiver of stolen property, taker of bhung, harbourer of criminals etc. Would, therefore, not be sufficient for initiating proceedings against such person. Unless such general allegations are backed by particular instances or details and particulars of the criminal habit or habits alleged against him. In the instant case no such instances or particulars are given in the police repo which, as already pointed out, merely contains general and vague allegation {{FOOT NOTE}}
(1) I L R 43 Mad. 400 (2) PLD 1976 Kar. 1073 {{FOOT NOTE}} against the applicant. Moreover, though in the report the applicant is allege to be a notorious and habitual thief, receiver of stolen property and taker o bhung, no respectable person of the locality where the applicant is residing or any other private person is cited in the information laid against him and the only witnesses cited against him are police officers. It has been held in The State v.
Hassad (1) that in proceedings under section 110, Cr. P. C. Evidence of general repute ought to be given by respectable persons who are acquainted with the person sought to be bound over who live in the same neighbourhood and are aware of his reputation and that ordinarily the Court cannot accept the evidence of police officers alone in this behalf. Similar view was taken by this Court in Mozan v. State (2).
7. The most serious objection to the continuance of the proceedings against the applicant is that though they have been pending for about three years not a single witness has so far been examined in the case. One cannot but be deeply disturbed by this state of affairs which casts a seious reflection on the Magistrate concerned and bespeaks of his lack of responsibility.
Continuance of these proceedings, in which there is little prospect of any material or tangible evidence forthcoming against the applicant after this long delay, would thus amount to harassm ent of the applicant and an abuse of the process of law. In The State v. Hyder (3) an order under section 112, in proceedings under section 110, was quashed on the ground that it has been passed for a period of 12 months, which period had long since elapsed and for the whole of which period the person concerned was in custody. Reference may also be made to the case of State v.
Mahmood (4) wherein I had observed that after the expiry of the period for which an order under section 112, Cr. P. C. Is made no furthe proceedings can be taken on the basis of that order. In the instant cas the order under section 112, Cr. P. C. Was made for a period of two years, which pericd expired almost a year back, and hence no further proceedings can be taken against the applicant on the basis of that order.
8. The present revision application is accordingly allowed and the proceedings pending against the applicant before the learned S. D. M., Dadu a quashed. The bail bonds furnished by the applicant are hereby discharged. {{FOOT NOTE}}
(1) PLD 1976 Kar. 928 (2) PLD 1971 Kar. 473
(3) PLD 1963 Kar. 673 (4) PLD 1974 Kar. 205 {{FOOT NOTE}}