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Judgment
Samvatsar, J.—This is a criminal reference by the Sessions Judge Dhar u/s 438, Criminal P. C.
The non-applicant Ranchod lodged a complaint in the Court of the Sub-Divisional Magistrate, 2nd Class Badnawar against the petitioners on 26-6-1952. It was alleged in the complaint that the petitioners had gone to the complainant''s field and had taken forcible possession thereof. It was also alleged that the petitioners are about to commit breach of peace and a prayer was made for taking action against them, u/s 107, Criminal P. C.
The learned Magistrate took up the matter for consideration and on 7-6-1952 passed a composite order purporting to be u/s 112 and Section 117(3) of the Criminal P. C. The petitioners preferred a revision application against this order and the learned Sessions Judge Dhar has made a reference to the High Court with recommendation that the order of the Sub. Divisional Magistrate be set aside,
The parties did not put in any appearance and the Government Advocate was heard.
The order of reference shows that the learned Sessions Judge felt that no order could be passed against the petitioners so long as an order u/s 112 was not communicated to them and there-lore the composite order was invalid. The view of the learned Judge is supported by a decision in - ''Emperor v. Sidik Ghulam'' AIR 1943 Sind 163. Another division Beach of the same Court has in - ''Emperor v. Yusif Jumo'' AIR 1943 Sind 175 followed this case and held that the error on the part of the Magistrate in failing to read out the order u/s 112 or to explain its substance vitiates the order u/s 117(3). In the case of - Tejsingh v. State AIR 1954 MP 39 , Newaskar J. has discussed the provisions of Section 117(3), Criminal P. C. and has held that the provisions of Section 117 (3) were mandatory and a failure to comply with them vitiated the order. In the present case the order under Sections 112 and 117(3) were passed at the same time and the order u/s 112 was not communicated to the petitioner before the order u/s 117(3) was passed. The order of the trial Court u/s 117 (3) cannot therefore be supported.
But there is also another aspect which needs to be examined. An order u/s 117(3) can be passed by the Magistrate only in case of emergency and that also to prevent the breach of peace. The learned Magistrate has passed the order u/s 117(3) in order to enable the complainant to carry on his agricultural operations. Now this is not valid ground for passing an order u/s 117 (3).
The result is that the reference is accepted, the order of the Magistrate is set aside and the ease is sent back for proceeding further according to law.