@JUDGMENTTAG-ORDER
Meredith, J.@mdashThis application arises out of proceedings u/s 107, Criminal P.C. As a result of these proceedings the five petitioners have been ordered to execute bonds of Rs. 200 each with one surety to keep the peace for a period of one year, or in default to undergo one year''s simple imprisonment.
2. The petitioners are said to be servants of the Raja of Kanika employed in the Bara Math in village Damarpur of which he is a trustee. Certain persons (referred to as the second party in these proceedings) took a lease of lands adjoining the math from the Mahant, and a suit by the Raja to eject them is said to be pending. Trouble arose between the two parties as a result of which the police made a report, asking that both parties should be bound down to keep the peace. The Magistrate then proceeded to dispose of the cases of both parties in the same proceeding. The five petitioners, forming the first party, and eight members of the second party were all called upon to show cause together. The matter was tried jointy, and eventually the members of both parties were bound down.
3. The result of the Magistrate''s procedure was that the persons proceeded against were also examined as witnesses against each other, and were cross-examined. For example, petitioner was examined as P.W. 9, petitioner 3 was examined as P.W. 8, and these petitioners were actually cross-examined on behalf of the opposite party.
4. The first point made for the petitioners is that this procedure was illegal, and resulted in prejudice. Section 117(5), Criminal P.C., provides that
where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just.
5. It is agrued that persons opposed to each other cannot be said to be associated together within the meaning of this provision, and that, in short, if people break each other''s head, they do not become associates merely because of that fact.
6. There is some authority upon the point. A Division Bench of the Calcutta High Court hold in Kamal Narain Chowdhry v. Emperor 11 C.W.N. 472 that the two opposing parties in a dispute cannot be proceeded against u/s 107, Criminal P.C., and bound over to keep the peace, in one proceeding. This decision has been followed by a learned Judge of this High Court in Kishore Ahir v. Emperor AIR 1926 Pat. 32, and the same view has been taken by a Judge of the Allahabad High Court in Har Dutt Panda v. Emperor AIR 1916 All 338.
4. There appears to be no Division Bench ruling of the Patna High Court, and in its absence I consider myself bound to follow the ruling of the Calcutta High Court to which I have referred. I may add, however, that it expresses my own opinion. It seems to me that procedure like that adopted by the Magistrate in this case must almost inevitably result in prejudice since the persons proceeded against and, as it were, in the position of accused persons, are put into the witness-box and cross-examined. It has been urged by the learned Advocate-General that I persons so proceeded against are not persons accused of an offence, and are not put on trial for any offence. That is, of course, true.
8. The proceedings are taken for the prevention of offences. At the same time the law enjoins that the procedure followed should be that adopted in the trial of accused persons. Section 117(2) in dealing with the inquiry says:
Such inquiry shall be made, as nearly as may be applicable, where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons-cases; and where the order requires security for good behaviour, in the manner hereinafter prescribed for conducting trials and recording evidence in warrant-cases, except that no charge need be framed.
9. Thus, the procedure is that of criminal cases, and it is an elementary principle that in such cases the accused person shall not be cross-examined.
10. The learned Advocate-General points out that Mr. Chintamani Acharya for the petitioners has not pointed to a single instance where statements elicited in cross-examination have been used against the persons making them. That is quite true, but Mr. Acharya''s second point in this case provides a complete answer. The second point is that neither the learned Magistrate nor the Sessions Judge have anywhere in their judgments dealt with the cases of individual accused, and summarised the evidence against each. It is, therefore, impossible to know what was working in the minds of these Courts, and whether they were influenced by statements elicited in cross-examination or not.
11. Even apart from the irregularity, not to put it stronger, of the joint proceeding, I should have felt myself bound to set aside the orders in this case merely because of the fact that the cases of individual persons have not received separate consideration.
12. The order demanding security from the petitioners, on both grounds, is unsustainable. It is accordingly set aside, and the bonds executed by the petitioners must be cancelled forthwith.
