The Judgment of the Court was delivered by

P.B Mukharji, J.:— This is an application in revision against the order of the Magistrate dated the 10th March, 1951, drawing up proceedings u/s 107, Cr. P.C, against the petitioners who were the second party and directing the petitioners to show cause why they should not execute the Bond for keeping peace for a period of one year.

2. The opposite party is a tenant of the petitioners. There are many disputes between them as landlord and tenant. Quarrels are going on regarding supply of water arid electricity. Then there are proceedings before the Rent Controller for standardisation of rent. The petitioners have also brought a suit for damages before the Third Court of the Munsiff at Alipur and another Title Suit before the same Court.

3. Against this background of litigation and dispute the allegation of the opposite party before the Magistrate was that the petitioners were creating nuisance and were abusing and insulting the opposite party with filthy language and were threatening him with acts of violence.

4. There was a Police enquiry finally resulting in the proceedings u/s 107 against the petitioners.

5. The main point argued before us is lone of law. The Magistrate's order of the 10th March, 1951, passed by Mr. F.M Sanyal, First Class Magistrate at Alipur, drawing up proceedings against the petitioners is challenged on the ground of being illegal and unjustified under the Criminal Procedure Code. It is contended also that Mr. Sanyal did not take cognizance of these proceedings u/s 107, Cr. P.C, and therefore had no jurisdiction to make the order of the 10th March, 1951. That order of the 10th March, 1951, apart from directing the petitioners to show cause transferred the case to Mr. S.L Banerjee, another First Class Magistrate, before whom the cause was to be shown. Such transfer is contended to be also illegal under the Criminal Procedure Code.

6. In order to appreciate these points it is necessary to examine and set out certain facts in this connection because the substance of the argument rests on the nature and character of the procedure that should be followed u/s 107, Cr. P.C and the right to transfer cases by Magistrates u/s 192, Cr. P.C

7. The petition by the opposite party was filed on the 28th September, 1950. An order was made by Mr. S.K Ghosh, S.D.O, Alipur, on the 21st November, 1950, and by that order a notice was issued directing the petitioners “To show cause on 20-12-50 as to why they should not be bound down u/s 107, Cr. P.C, to keep peace”. That bears the title as a “Notice u/s 107 Cr. P.C”. It recites the petition of the opposite party and the report of the Metiabruz Police as well as the apprehension that there may be a serious breach of peace at any moment and finally gives directions to show cause in the terms indicated above. After adjournment on the 20th December, 1950, the matter came up on the 10th March, 1951, when, as I have indicated above, Mr. F.M Sanyal, the First Class Magistrate at Alipur, again passed an order directing the petitioners to show cause why they should not be ordered to execute a Bond of Rs. 100 each with one surety of the like amount for keeping peace for the period of one year. By this order not only was cause asked to be shown but as I have said the case was also transferred to Mr. S.L Banerjee, another First Class Magistrate, before whom the cause was to be shown and who was asked to dispose it of.

8. The argument now will become clear on these facts.

9. It is said that the first notice of Mr. S.K Ghose, S.D.O, Alipur, dated the 21st November, 1950, having been issued to show cause there is no procedure which justifies a further order on the 10th March, 1951, by Mr. Sanyal, the First Class Magistrate, to show cause again. That is said to be a procedure not recognised u/s 107 Cr. P.C Then the order of transfer of the case by Mr. Sanyal to Mr. Banerjee is said to be illegal under the Criminal Procedure Code.

10. The argument raises questions of considerable importance.

11. Sec. 107 Cr. P.C provides that when the specified class of Magistrates is informed that any person is likely to commit a breach of peace or disturb public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, that Magistrate, if in his opinion there is sufficient ground for proceeding, may, in the manner provided in the Statute, require such person to show cause why he should not be ordered to execute a Bond with or without sureties for keeping peace for a period not exceeding one year as the Magistrate thinks fit to fix. If the Magistrate proceeds then he may proceed “in the manner hereinafter provided”. The manner that is provided is laid down in sec. 112 Cr. P.C That section provides that when a Magistrate acting u/s 107 Cr. P.C 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.

12. Judged by that test the notice issued, by Mr. S.K Ghosh, S.D.O, Alipur, directing the petitioners to show cause is clearly illegal. It does not state the amount of the Bond to be executed, the term for which it is to be in force or the number, character and class of sureties (if any) required.

13. In order to get round this difficulty it was contended on behalf of the opposite party that this notice of Mr. S.K Ghosh. S.D.O, Alipur, dated the 21st November, 1950, was not a notice u/s 112 Cr. P.C, but a kind of a preliminary notice u/s 107 Cr. P.C To my mind sec. 107 Cr. P.C does not contemplate issue of any preliminary notice to show cause. The Magistrate may proceed in the manner laid down by the Code. The words are “The Magistrate if in his opinion there is sufficient ground for proceeding 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 and keeping the peace for such period”. The words “in the manner hereinafter provide ed” are essential words and the Magistrate cannot discover a manner of his own which he has done in this case. The manner provided is clearly laid down in sec. 112 Cr. P.C Issue of a preliminary notice “to show cause” apart from what is provided u/s 112 Cr. P.C does not appear to me to be a justified course permitted by the law. Sec. 107 Cr. P.C does however give a discretion to the Magistrate in the sense that he “may” require the person to show cause. He may choose to exercise his discretion to require such person to show cause or he may not. But when he does exercise that discretion and does decide that he will issue a notice to show cause then that notice to show cause must be a notice which satisfies the requirements of sec. 112 Cr. P.C

14. The procedure u/s 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 u/s 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

15. A petition u/s 107 Cr. P.C is not a complaint and therefore the Magistrate cannot proceed u/s 202 or sec. 204 Cr. P.C A petition u/s 107 Cr. P.C is not to be treated as a complaint. A Magistrate u/s 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 sec. 117 Cr. P.C The proceedings before the Magistrate u/s 107 Cr. P.C become judicial only from the stage of enquiry u/s 117 Cr. P.C But before that stage is reached and before any, notice to show cause is issued u/s 112 Cr. P.C, all that as required u/s 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.

16. To pursue the procedure that is laid down by the Code it is necessary to observe that the order u/s 112 Cr. P.C should be served in the manner laid down in sec. 115 Cr. P.C Then the Magistrate is to hold an enquiry as to “the truth of the information upon which action has been taken” and to take such further evidence as may appear necessary as laid down in sec. 117 Cr. P.C This is the stage of judicial enquiry under section 107 Cr. P.C and the procedure then approximates to conduct of trials and recording of evidence in Summons cases. The final stage is reached when the Magisrate directs the person to give security u/s 118, Cr. P.C, if it is proved that it is necessary for keeping the peace that the person in respect of whom the enquiry is made should execute a Bond. The Magistrate shall make an order if it is so, necessary or discharge such person u/s 119 Cr. P.C when he thinks that it has not been proved that it is so necessary. That in brief is the simple and clear procedure laid down under the Criminal Procedure Code.

17. The Magistrate's power to call for a police enquiry and a police report should not be mistaken for his power to issue a notice to show cause without complying with sec. 112 Cr. P.C The decision of the Allahabad High Court in Lakshmi Narayan v. Emperor (1) (34 Cr. L.J 42) is not an authority for the proposition that a Magistrate if he decides to issue a notice to show cause then—that notice to show cause can be given in utter disregard of the provisions of sec. 112 Cr. P.C

18. I am therefore bound to hold that the notice to show cause by Mr. S.K Ghosh u/s 107 Cr. P.C dated the 21st November, 1950, does not satisfy the requirements of the statute. I hold therefore that such notice is illegal and must be set aside.

19. Then the question arises, does the subsequent order of Mr. Sanyal of the 10th March, 1951, to show cause, which does satisfy the requirements of sec. 112 Cr. P.C cure that initial defect? This question involves the consideration of the extent of the right to transfer a case u/s 192 Cr. P.C There is a good deal of confusion on this branch of the subject and it appears to me to be necessary to refer to certain decisions on this point.

20. The main argument of the petitioner on this branch of the case is that sec. 192 Cr. P.C does not at all apply to proceedings u/s 107 Cr. P.C The refrain of this argument is that sec. 192 Cr. P.C refers to cases of which the Magistrate has taken “cognizance for enquiry or trial”. It is said that the proceeding u/s 107 Cr. P.C may be a “Case” but there can be no cognizance for enquiry or trial for such a proceeding.

21. But enquiry has a very wide connotation under the Criminal Procedure Code and includes every enquiry other than a trial conducted under the Code by a Magistrate or a Court. That is the meaning given to “enquiry” u/s 4(1)(k) Cr. P.C I am of the opinion that proceedings u/s 107 Cr. P.C do come within such meaning of the word “enquiry”. In fact sec. 117 Cr. P.C in this connection does use the word “enquiry”. It is quite true that the word used in sec. 192 Cr. P.C is “case” and not “offence”. There can in my view be no doubt that proceedings u/s 107 Cr. P.C come within the meaning of the word “case” as used in sec. 192 Cr. P.C

22. Then the attack is made on the basis of the word “cognizance”. It is argued that cognizance can only be taken of an offence and not of a case. Reliance is placed on the observation of Sen, J., in Pran Krishna Das v. Shyam Sundar Sarkar* (2) (54 C.W.N 228) where the learned Judge was dealing with proceedings u/s 133 Cr. P.C At page 231 of the Report of that case the learned Judge observed: “Apart from the title of these parts of the Code the wording in sec. 190 itself makes it clear. It deals with a case of which cognizance has been taken. Now cognizance can only be taken of an offence. Sec. 190 is one of the sections which deals with the manner in which cognizance may be taken of an offence. It is clear therefore that sec. 192 concerns offence.” With great respect to the learned Judge we are unable to agree with the view that sec. 192 Cr. P.C concerns only offence. The language of sec. 192 does not use the word “offence” deliberately but uses the far more general word “case”.

23. A Division Bench (K.C Das Gupta, J., and P.N Mookerjee, J.) of this Court in the unreported decision in Criminal Revision No. 721 of 1950, Jubbar Mondal v. Tarak Chandra Ghosh, (3) where judgment was delivered on the 7th February, 1951, came to the conclusion that the question whether sec. 192 Cr. P.C authorises transfer of proceedings u/s 145 Cr. P.C was well settled by the authority of the decision in the case of Satish Chandra Pandey v. Rajendra Nath Bagchi, (4) (I.L.R 22 Cal. 898). On the decision of Sen, J., that Bench observed: “The learned judge did consider sec. 192 Cr. P.C and hold that sec. 192 Cr. P.C deals with transfer only, of offences. His attention however was not drawn to the several Division Bench decisions following the decision in the case in I.L.R 22 Cal. 898 referred to above. We are bound to follow the decision in the case reported in I.L.R 22 Cal. 898 which as already stated has been followed in a number of cases and has settled the law in a particular way.” I respectfully agree with this view of the Division Bench of sec. 192 Cr. P.C

24. In my judgment sec. 192 refers not only to taking cognizance of offences but of cases of which cognizance has been taken. The language used in sec. 192 Cr. P.C is much wider in its character in respect of cognizance than that which has been employed in sec. 190 Cr. P.C It appears to me that it will be anomalous to give to the word “cognizance” fin sec. 192 Cr. P.C any technical and narrow significance and to confine it only to what are known as “offences”. The context of sec. 192 having used the word “case” justifies a wider meaning being given to the word “cognizance”. It must be observed that the expression “cognizance” has not been defined in the Criminal Procedure Code. It is quite true that sec. 190(1) of the Code refers to cognizance of offences. But I do not see how that can be taken to mean that wherever the word “cognizance” is used in the Code it should only mean cognizance in respect of offences, specially when the context of sec. 192 Cr. P.C uses the word “case” and not “offence”. This view that I take also finds support from the decision of Edgley, J., in Hafizul Rahman v. Aminul Huq (5) [I.L.R (1941) 1 Cal. 67] where the learned Judge has exhaustively dealt with the previous authorities on the point. It is unnecessary for me to repeat them here.

25. I am therefore of the opinion that sec. 192 Cr. P.C does apply in a proper case to proceeding u/s 107 Cr. P.C and can be used to exercise the right to transfer the proceedings u/s 107 Cr. P.C I therefore overrule the argument put forward on behalf of the petitioners that sec. 192 Cr. P.C does not at all apply to proceedings u[s 107 Cr. P.C

26. But the difficulty of the petitioners does not end there. Mr. Sanyal is not the Magistrate who had taken cognizance of this case. Now sub-section 1 of section 192, Cr. P.C, permits a Subdivisional Magistrate to transfer such a case to any Magistrate subordinate to him. But here Mr. S.K Ghosh, S.D.O, Alipur, did not make such a transfer to Mr. Sanyal. In fact it was Mr. S.K Ghosh who had taken cognizance of this case u/s 107 Cr. P.C Then it is contended on behalf of the respondent that Mr. Sanyal was empowered by the District Magistrate under sub-section 2 of section 192 Cr. P.C That in my opinion is quite an untenable argument on the facts of this case. In my view one of the statutory conditions which must be satisfied before any District Magistrate may empower any Magistrate of the First Class under sub-section 2 of section 192 Cr. P.C is that Magistrate of the First Class must be one “who has taken cognizance of any case”. It is not any and every Magistrate of First Class who can be empowered by the District Magistrate in this respect. Mr. Sanyal is no doubt a Magistrate of the First Class but he is not that Magistrate who took cognizance of this case.

27. On the facts of this case it does not appear that this defect of jurisdiction can be cured by the application of sec. 529 (f) Cr. P.C There it is provided that if any Magistrate not empowered by law to transfer a case u/s 192 “erroneously in good faith” does so transfer the proceedings the proceedings shall not be set aside “merely” on the ground of his not being so empowered.

28. The present case is not one of a Magistrate not being empowered by law to transfer. Here the District Magistrate under sub-section 2 of section 192 Cr. P.C who undoubtedly had the necessary power did purport to empower the Magistrate of the First Class but what has happened is that this power was exercised in favour of a Magistrate who had not taken cognizance of the case. Sec. 529 (f) contemplates in my view a case where the Magistrate who is empowered is a competent Magistrate under the Code to receive the power but who in fact has not been so empowered by the District Magistrate. There the defect would be cured if the proceedings are questioned merely on the ground of his not being so empowered by the District Magistrate.

29. The decision in Ram Krishna Sinha v. Emperor (6) (42 C.W.N 246) does refer to this question at p. 250 where it is observed “there are some cases in which it has been held that sec. 529 applies only when a Magistrate who might have been empowered to do the particular ‘thing in question is not actually so empowered and not with cases of irremediable want of jurisdiction”. The learned Judges also observe at p. 251 “We cannot say that this is an unreasonable interpretation of the scope and effect of, sec. 529”. That decision however went on to say that “so far as clause (f) of this section is concerned there are decisions of this Court in which this clause has been held to apply to cases where orders of transfer purported to be made u/s 192 Cr. P.C by Magistrates who are not competent to do so as not being Magistrates who had taken cognizance”. The decision there arrived at however is based on the following observation at p. 251 “but on matters of this kind which are really matters of procedure we do not think we would be justified in laying down a different Rule.” Three cases were referred to in that decision. One is of Kishorilal Roy v. Srinath Roy (7) (I.L.R 38 Cal. 370 at p. 373), the second Dasarathi Roy v. Emperor (8) (I.L.R 36 Cal. 896) and the last one is Bhika Hossain v. Emperor (9) (I.L.R 39 Cal. 1041). Kishorilal Roy's case (7) apparently proceeded on the assumption that the Magistrate had the necessary power. In Dasarathi Roy's case (8) the point was not raised in the form that has been raised here as the: observations of the learned Judges at p. 252 of the Report show. The case really proceeded on the right of the Joint Magistrate to hear appeal from the Sub-Deputy Magistrate and on the basis that in such appeal the point was not taken. The case of Bhika Hossain (9) in 39 Cal. 1041 rather said that sec. 529 (f) did not in that case confer jurisdiction on the Deputy Magistrate to make the order. The authority of Ram Krishna Sinha v. Emperor (6) (42 C.W.N 246) clearly points out that such a case “is undoubtedly a defect of jurisdiction which may not unreasonably be said to be outside the scope of section 529(f) Cr. P.C”

30. I consider it improper on the part of the Magistrates when they are told by the authoritative decisions of this Court that a certain step is illegal that they would still continue to follow that illegal procedure which goes to the very root of their jurisdiction and then apply the curative provision of sec. 529 (f) Cr. P.C, on the ground of having done it “erroneously in good faith”. Such a course will permit the criminal administrative machinery of the land to be abused without regard to the correct legal procedure laid down in the Criminal Procedure Code and by the interpretation of this High Court. It is the duty of the Magistrates and the Criminal Courts of this State to follow the procedure prescribed by law and there is no law not even sec. 529(f) Cr. P.C, which in a case like this can be said to sanction deliberate and intentional departure from that procedure. It is also their duty to inform themselves on the law which they are expected to administer and the decisions of this Court thereupon.

31. The words “erroneously in good faith” in sec. 529 Criminal Procedure Code do not protect deliberate negligence and wilful disregard of the clear provisions of the Code and the binding decisions of this Court. In this case the Magistrate himself quotes and relies on the decision of Ram Krishna Sinha v. Emperor (6) (42 C.W.N 246) to say that his illegal order is cured by sec. 529 (f) Cr. P.C This Court does not countenance such open and intentional violation of the law and subsequent invocation of sec. 529(f) Cr. P.C, to cure it when the Magistrate knows what the correct position in law and procedure is. That is not “erroneously in good faith” and therefore cannot be cured and protected by sec. 529 (f) Cr. P.C

32. But for the two grounds, namely, first, that this case does not come within the words “erroneously in good faith” and secondly, the proceedings here are questioned not “merely” on the ground of the Magistrate not being empowered, I was inclined to refer to a Full Bench for a fuller consideration of the point whether sec. 529(f) Cr. P.C, can at all be invoked to cure such defect of jurisdiction in a case like this. Reference to a Full Bench however is unnecessary in this case. Here the proceedings are questioned on other grounds also and that is whether Mr. S.K Ghosh, the S.D.O, of Alipur, having already issued a notice to show cause on the 21st November, 1950, which is illegal. Mr. Sanyal who had not taken cognizance of the case could issue again another notice on the 10th March, 1951, to show cause.

33. Sec. 529 Cr. P.C, makes it quite clear that the proceedings mentioned therein shall not be set aside “merely” on the ground of the Magistrate not being empowered by law. Where there are other grounds on which the proceedings are questioned, as here, sec. 529 Cr. P.C, cannot be availed of.

34. I therefore hold that sec. 529(f) Cr. P.C, cannot be attracted on the ground that the Magistrate in this case has not acted “erroneously in good faith” nor are the present proceedings questioned “merely” on the ground of the Magistrate not being empowered by law.

35. In the view that I take and for the reasons I have stated, the entire proceedings in this case after cognizance was taken by Mr. S.K Ghosh, S.D.O, Alipur, and from the stage he issued the illegal notice u/s 107 Cr. P.C, on the 21st November, 1950, to show cause are illegal and unjustified and must be set aside.

36. In the result I make the Rule absolute. The petition of the opposite party under sec 107 Cr. P.C, should be dealt with according to law as indicated above, unless the Magistrate considers that there is now, about a year after the petition, no likelihood of breach of peace in which case he will refuse to issue notice u/s 112 Cr. P.C, to show cause and to take any further steps on the petition.

Guha, J.:— I agree.

P.S