[1948] EACA 90

### APPELLATE CRIMINAL

### Before SIR BARCLAY NIHILL, C. J., and MODERA, Ag. J.

## (1) MANIBHAI KALIDAS PATEL and (2) JETHABHAI MARGABHAI PATEL, Appellants (Original Complainants)

# HIRA PANCHA, Respondent (Original Accused) Criminal Appeals Nos. 613 and 614 of 1948 consolidated

Criminal practice and procedure—Proceedings for security for keeping the peace— Criminal Procedure Code, section 42—Information to Magistrate not on oath-Irregularity-Meaning of "informed on oath"-Order for costs-Appeal from—Application of sections 171 (2) and 173, Criminal Procedure Code to proceedings under section 42.

On the 10th April, 1948, the advocate of the appellants filed in the Resident Magistrate's Court, Nairobi, an affidavit which had been sworn before a Commissioner for Oaths.

The affidavit alleged that the respondent was likely to commit a breach of the peace. On reading the affidavit the Magistrate, purporting to act under section 42 of the Criminal Procedure Code issued a warrant for the respondent's arrest to be brought before the Court to show cause why he should not be ordered to execute a bond to keep the peace. The respondent appeared and entered into a bond of Sh. 1,000. The matter came for hearing at a later date before another Magistrate who held that the proceedings were irregular and wrongly instituted as the former Magistrate had not been *informed on oath* that a breach of the peace was likely, discharged the respondent, releasing him from his recognizance and ordered the appellants to pay him costs under section 171 (2) of the Criminal Procedure Code.

Against this order they appealed.

Held $(14-12-48)$ .—(1) (a) That where a person wishes to move a Court to take action under section 42 of the Code to compel the attendance of one believed likely to commit a breach of the peace, the merc filing of an affidavit to that effect is not a sufficient compliance with the provisions of the section.

(b) That in such circumstances a Magistrate has not been "informed on oath" within the meaning of the section, and before requiring a person to show cause why he should not be ordered to execute a bond to keep the peace, the Magistrate must have the complainant before him and examine him on oath.

(2) That the provisions of section 171 (2) of the Criminal Procedure Code do not apply to a case where a person is discharged from proceedings instituted under section 42, such person not being one "accused of an offence".

(3) That the provisions of section 173 of the Code do not apply to proceedings instituted under section 42 since "a charge" is not preferred against a person who is required to show cause why he should not enter into a bond to keep the peace.

Order for costs set aside.

#### A. R. Kapila for the Appellants.

Holland, Crown Counsel, for the Crown.

JUDGMENT.—This is a consolidated appeal against an order made by one of the learned Resident Magistrates, Nairobi, requiring the appellants to pay costs in respect of proceedings instituted by them under the provisions of section 42 of the Criminal Procedure Code. The learned Magistrate came to the conclusion and we think rightly so that the proceedings which had been instituted before another Magistrate were irregular on the ground that the Magistrate had not been informed on oath that the man Hira Pancha was a person likely to cause

a breach of the peace or to disturb the public tranquility. We agree with the learned Magistrate that the filing of an affidavit to that effect was not a sufficient compliance with the provisions of the section. A Magistrate, before requiring a person to show cause why he should not be ordered to execute a bond to keep the peace must have a complainant before him and examine him on oath. If there has been a practice for Magistrates to act on affidavit only when applying the provisions of this section it is a practice which must cease.

It is in respect, however, of that part of the Magistrate's order which relates to costs which is the subject matter of this appeal and on which the appellants are entitled to succeed, since we are of the opinion that the provisions of section 171 (2) of the Criminal Procedure Code have no application to a case where a person is discharged from proceedings instituted under section 42, since such a person is not a person "accused of an offence" but a person against whom it is alleged that in the interests of public order he should be required to enter into a bond to keep the peace. The wording of section 171 (2) shows clearly that the sub-section applies only to persons accused of an offence and to none others.

Neither in our opinion can the provisions of section 173 of the Criminal Procedure Code be applied to proceedings instituted under section 42 since "a charge" is not preferred against a person who is required by a Magistrate to show cause why he should not enter into a bond to keep the peace.

Since therefore the provisions of section 42 and the subsequent sections which govern the procedure relating to this section makes no provision for an order of costs against the person instituting proceedings under the section the Magistrate had no jurisdiction to make an order damnifying the appellants in costs and that part of his order must be set aside. A person against whom malicious or unfounded accusations are brought by a complainant acting under section 42 may have a civil remedy but the Criminal Procedure Code does not empower a Magistrate on his own motion to afford him any relief.

Counsel for the appellants has also taken the point that the learned Magistrate's order was also bad in that his order for costs was not for a sum certain as is required by section 174 of the Criminal Procedure Code. The point is a good one but it is not the one on which we allow this appeal. We set aside that part of the Magistrate's order relating to costs.