Mst. HAMEEDA BEGUM vs S.H.O., POLICE STATION ROHRI and others

ORDER

1. The applicant Mst. Hamida Begum has assailed the proceedings under sections 107, 150, Cr.P.C.

2. Pending against her before the Mukhtiarkar & F.C.M., Rohri initiated upon the report of S.H.O. P.S., Rohri. The contents of the report submitted by Inspector/S.H.O. Mushtaq Ahmed Khoso of Police Station Rohri before the trial Court are reproduced hereinbelow:-- "Sir, it is submitted that Suriya Begum moved application to monitoring cell. The said application bearing No,845, dated 30-6-2000 received for enquiry I entrusted the enquiry against Mst. Hamida Begum and her son to A.S.-I. Wajid Ali Mangi. The report shows that there is dispute between Mst.

3. Suriya Begum and Mst. Hamida Begum over monetary transaction. They are not prepared to compromise. The complaint of Mst. Suriya Begum shows that no cognizable offence has been committed by Mst. Hamida Begum. Haji Ibrahim and Ashique Rasool who are residing within the jurisdiction of this Court. There is possibility of breach in peace, therefore, Report No,50 of 2000, under sections 107, 150, Cr.P.C. Is submitted before the Court. It is prayed that warrants may be issued against respondents. They may be bound down in the interest of justice." The trial Court on receipt of the report reproduced hereinabove, passed order under section 112, Cr.P.C. And issued bailable warrants against the respondents in the sum of Rs,10,000 and P.R. Bond in the like amount. I have heard Miss Zahida Nizam, learned counsel on behalf of the applicant and Mr. Mumtaz Ali Siddiqui, learned counsel on behalf of A.-G. For the State. The latter states that it is fit case for the quashment of proceeding.

4. The perusal of the material placed on record as well as the R & P shows that the trial Court acted in excess of its authority and also failed to follow the mandatory provisions of law prescribed under the Code of Criminal Procedure, 1898.

5. The condition precedent for taking cognizance and proceeding under section 107, Cr.P.C. Is that information received by him constitutes apprehension of breach of peace or disturbance in public tranquility. The information must be clear, unambiguous containing tangible facts justifying an action against the person complained of. The proceedings are not penal but punitive. The Magistrate upon receiving the information has to record reasons for passing preliminary order. The same is lacking in the present case. Merely because the parties are not compromising in a matter relating to monetary transaction, does not warrant action under section 107, Cr.P.C. It tantamount to pressurizing a person in an autocratic manner for ulterior motive. The Magistrate is not required to act upon the police report mechanically without applying his judicial .Mind and discretion vested in him. The proceedings under Chapter VIII of the Code of Criminal Procedure are judicial, therefore, the same should be conducted in accordance with law. The allegations are of general nature. No date, time or place has been specified in the report or in order under section 112, Cr.P.C.

6. It is contemplated under section 114, Cr.P.C. That if a person against whom order under section 112, Cr.P.C. Is passed is not present in the Court, the Magistrate is required to issue a summon in the first instance for his appearance before the Court. If the Magistrate is of the opinion that there is imminent apprehension of breach of peace and that cannot be averted, the Magistrate can issue a warrant for the arrest of the person. For issuing warrant, it is required by law that Magistrate has to assign reasons in writing for taking this extraordinary step. It is apparent from the perusal of the R&P that the Magistrate has acted mechanically on the police report. He has not recorded any reasons for the issuance of warrants. Moreover the plain reading of the report of S.H.O. Reproduced hereinabove shows that the respondent was compelled to succumb to the wishes of applicant party. She in spite of the pressure exerted upon her declined to enter into compromise, therefore, she has been dragged in the present proceedings.

7. The section 115, Cr.P.C. Envisages that every summons or warrant issued under section 114, Cr.P.C. Be accompanied by a copy of order under section 112, Cr.P.C. The wisdom of the Legislature enacting this provision of law appears to be that the respondent must know the reasons for the curtailment of his liberty and he should adduce the evidence to rebut the allegations made against him in the report/information. Human liberty is cherished one. The non-compliance of this mandatory provision of law vitiates the proceedings. The perusal of record shows that no copy of order under section 112, Cr.P.C. Was sent by the trial Magistrate alongwith warrant to the applicant. Thus the Magistrate has violated the mandatory provisions of section 115, Cr.P.C. Consequently, the proceedings in Criminal Case No,183 of 2000 (State v. Mst. Hamida Begum and others) under sections 107, 150, Cr.P.C. Which arose out of Report No,50 of Police Station; Rohri pending before Mukhtiarkar and F.C.M., Rohri are abuse of the process of Court and stand quashed.

8. The application stands allowed.