Koshi, J.:— The first counter petitioner in M.C 20/1950 on the file of the Division First Class Magistrate, Alleppey has preferred this revision against an order passed by the learned Magistrate directing the counter petitioners thereto to execute interim bonds for keeping the peace. Before the present petitioner filed this petition the 5th counter petitioner in the case had filed a similar application in Cri. Revision petition No. 238/1950 and that was dismissed by my learned brother Mr. Justice Govinda Pillai sitting alone. Afterwards when this petition came up before me it was argued that the order under revision was open to exception in more ways than one. An unreported Division Bench ruling of the Travancore High Court in ‘Cri Proceedings No. 448 of 1122 D/- 26-6-1122’ as also a line of decisions of the Chief Court of Sind were cited in support of the revision. I then thought it proper to refer the petition to a Division Bench. That is how this revision happened to come up before a Division Bench.
2. The grounds of attack directed against the order are two. They are (1) that the order was made prematurely or without jurisdiction in that it was passed before the order under S. 108 was read or explained to the persons sought to be proceeded against and (2) that in form or substance the order does not satisfy the requirements of the relevant sub-section of S. 113 namely sub-section (3).
3. The argument on the first ground was that the Court that has seized of the case could not pass an order under sub-section (3) unless and until the enquiry referred to in sub-s. (1) is commenced and according to the learned counsel for the petitioner that enquiry does not commence before the preliminary order under S. 108 is read and explained to the persons proceeded against. This contention no doubt finds support in the unreported decision of the Travancore High Court referred to above and in the Sind cases cited at the Bar ‘Sakina Kessar v. Emperor’, AIR (30) 1943 Sind 123 at pp. 163 and 175. The question is when the enquiry contemplated under S. 113(1) can be said to commence. The argument raised by the learned Public Prosecutor and the learned counsel for the petitioner in the Court below is that the enquiry should be considered to commence at least when the persons sought to be proceeded against are brought or appear before the Court to answer the charge against them. According to them when the counter petitioners to a proceeding under Chap. VIII are so before the Court the stage is set for the enquiry and the fact that due to the exigencies of the work of the Court the case has to be adjourned from time to time would not mean the enquiry has not become yet one pending before the Court. This appears to me to be a common sense interpretation of the provisions in S. 113(1) and (3). A recent Division Bench ruling of this Court passed by the learned Chief Justice and Mr. Justice Sankaran ‘Abraham Upadesi v. Mathai’, 1951-6 Dom LR (Tra Coch.) 18 took the same view of this question. Apart from the fact that the construction sought to be put upon the two sub-sections by the petitioner's learned counsel would lead to several practical inconveniences and difficulties and hamper the proper working of the preventive sections of the Code. I am far from satisfied that the construction sought to be given on behalf of he State would offend any provision of the Code. Words similar to those occurring in S. 113(1) occur in S. 249(1) and interpreting the corresponding provision in the Indian Criminal Procedure Code (S. 252(1) in ‘Pandurang v. Emperor’, AIR (18) 1931 Bom 411 at p. 412 two learned Judges of the Bombay High Court said as follows:
“As to whether the enquiry or trial had commenced on 31st July or not we are clearly of opinion that under the definition of “inquiry” under S. 4(K), Criminal Procedure Code, combined with the provisions of S. 252 Ch. 21 of the same Code, the inquiry of the case was not deferred till such time as the Magistrate would begin to record evidence but commenced not indeed with the lodging, of complaint or even with the issue of process but with their appearance on such processes before the Magistrate to answer the charges.”
4. This accords with the view I take here and that taken in ‘(1951) 6 Dom LR (Trav-C) 18’.
5. In this case the preliminary order was passed on 22-4-1950 and out of the seven counter petitioners in the case six of them appeared before the Court and furnished bail on 24-4-1950. The seventh counter petitioner entered appearance on 28-6-1950 and he was also allowed bail. Meanwhile the petitioner before the lower Court moved that Court by means of a petition supported by an affidavit sworn to by him that action be taken against the counter petitioners under sub-section (3) of S. 113. These papers were forwarded to the Police for enquiry and report. The police submitted their report on 14-5-1950 supporting the motion. The Court passed its order now sought to be revised only on 19-7-1950 and the records show that before that order was passed the-first counter petitioner (the petitioner before us) had filed an objection and that afterwards the vakil for the counter petitioners had sought leave to file certain documents to support the objection. Those papers were actually filed and it is with all those materials before him and after hearing both sides that the learned Magistrate passed his order now impugned. Apart from what has been said above as to when an enquiry under S. 113(1) commences I cannot, on the facts of the present case find any substance in the complaint that the order was made prematurely or without jurisdiction.
6. As for the second ground urged before us the facts set out in the preceding paragraph of this order clearly show that the Magistrate had applied his mind to the question whether any emergent action was called for. No doubt his order could have been better worded and he could have referred to the documents and the arguments advanced at the Bar rather than rely solely on the report of the Police. The form of the order is rather unsatisfactory but I do not think that sufficient grounds are made out for this Court's interference. Magistrates like other judicial officers have not only to see that justice is done but also that the parties are made to feel that justice is being done to them. An order like the present one before us “that for reasons stated in the police report dated……the counter-petitioners shall execute bonds etc.” is hardly likely to instil or inspire the necessary confidence in the minds of the parties or the public and it is no wonder that it was sought to be challenged in revision.
7. This observation however is only by the way.
8. For reasons already explained the petition fails and it will stand dismissed.
Govinda Pillai, J.:— I agree.
9. Petition dismissed.