Law: Criminal Procedure Code, 1898

Section:

Criminal Procedure Code (V of 1898)-----   --- Ss. 107, 112 & 117 Magistrate drawing up proceeding under S. 107 and directing person proceeded against to show cause under S. 112-Cannot dispense with inquiry provided for by S. 117-Order passed without complying with provisions of S. 117-Illegal.   According to subsection (1) of section 117 of Criminal Procedure Code, 1898 a Magistrate is bound to enquire into the truth of the information upon which action has been taken under section 107 of the Code. The Magistrate is not competent to dispense with the enquiry as provided for by section 117 and to pass his order merely on perusing the papers and his assumption from something imaginary that there is no apprehension of the breach of the peace. This section clearly provides that a Magistrate should hold full judicial inquiry, as a proceeding under section 107 of the Code is a judicial proceeding, as soon as the opposite parties appear and show cause in response to notice issued to them under section 112 of the Code. The Magistrate must direct both parties to adduce evidence and if the parties adduce evidence he must record the same and if they do not adduce evidence then the Magistrate must decide the proceeding on the materials before him and pass the final order.   Where, the Magistrate drawing up a proceeding under section 107 of the Criminal Procedure Code, 1898 directed the person proceeded against to show cause under section 112 of the Code and upon their showing cause the Magistrate without taking any evidence and without holding any inquiry under section 117 of the Code passed the following order :   "Seen the connected papers . . . . . . . . . As far as can be seen the petitioner has selected a ready procedure to have an adjudication of possession in a Criminal Court of a matter which appears to be a civil dispute. The petition is filed as there is no apprehension of breach of the peace."   Held, that since the order passed by the Magistrate was not in compliance with the provisions of subsections (1) and (2) of section 117 of the Criminal Procedure Code, 1898 it was vitiated by illegality and as such required to be…