Abdul Hamid vs State of Bihar

Shivanugrah Narain, J.—This application is directed against an order of the Sub-Divisional Magistrate, Hajipur, by which he passed an order u/s 116(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''), directing the petitioner who was opposite party in a proceeding u/s 107 of the Code before him to execute ad interim bond of Rs. 1,000/- with two sureties of the like amount each for keeping the peace until the conclusion of the enquiry.

The relevant facts are these:

The Officer-in-charge, Hajipur Police station submitted a report before the Sub-Divisional Magistrate, alleging that the petitioner Abdul Hamid and one Sagina Chaudhary were strong supporters of the current students'', agitation and were provoking the students to commit various acts leading to breach of the peace and that they were likely to be committed for commission of arson of 18-4-1974 and that they were contemplating to disturb the academic life of the colleges and school which were reopening on 15-7-1974 and also to obstruct holding of the Intermediate examinations, commencing from 18-7-1974. On the basis of this report, the learned Sub-divisional Magistrate by his order dated 14-7-1974 drew up a proceeding u/s 207 of the Code asking the petitioner and Sagina Chaudhary to show cause by 15-7-1974 why they should not be ordered to execute a bond of Rs. 1,000/-with two sureties of the like amount each for keeping peace for a period of one year. Being further of the opinion that the commission of breach of the peace could not be prevented otherwise than by their arrest, the learned Sub-Divisional Magistrate also issued non-bailable warrant for their arrest and directed that a copy of the order initiating the proceeding u/s 107 of the Code be also attached with the warrant to be delivered to them. On 15-7-1974, it appears that only the petitioner Abdul Hamid was immediately apprehended and on 15-7-1974 the petitioner was produced in custody by the Hajipur police. Thereafter on 15-7-1974, the learned Magistrate passed the impugned order which reads thus:

The order dated 14-7-74 read over and substance explained to the O. P. I am further satisfied after applying my mind to the report of the police already submitted that immediate measures are necessary for the prevention of breach of the peace and disturbance to the public tranquility as well as for the public safety. Also perused the petition of A. P. P. It is accordingly ordered that he should execute a bond of Rs. 1,000/-with two sureties of the like amount each for keeping the peace until the conclusion of the enquiry u/s 116(3) Cr. P. C. P. P. to adduce evidence on the date fixed.

Later, on the same date as the bond was not furnished, the petitioner was ordered to be detained in custody until the bond was furnished. As already stated, the petitioner has come up before this Court praying that the aforesaid impugned order be quashed.

Learned counsel appearing on behalf of the petitioner urged before me that the learned Magistrate acted illegally in passing the order u/s 116(3) of the Code for execution of interim bonds because the stage for making that order had not reached under the scheme of the Code. In my opinion, this contention is correct and must prevail. I must state that on 15-7-1974 when the order was passed not only no evidence bad been adduced, but the petitioner had not even shown cause. The circumstances and the stage at which the order for interim bond u/s 117(3) of the Criminal Procedure Code 1898 which corresponds to and is in part materia with the provisions of Section 116(3) of the Code were considered by the Supreme Court in two cases in both of which Madhu Limaya was the petitioner and judgments were delivered on the same date. In Madhu Limaye v. Sub-divisional Magistrate, Monghyr 1972 (2) S.C. A. 45, the constitutional validity of various provisions including the provisions contained in Section 107 and 117 of the Code was challenged and in that connection their Lordships of the Supreme Court had to construe Section 117 of the old Code. After pointing out that the first sub-section read with the second requires the Magistrate to proceed to enquire into the truth of the information upon which action has been taken and an order u/s 112 of the Code passed and that the third sub-section enables the Magistrate to ask for an interim bond pending the completion of the enquiry by him, Hidayatullah, ''C. J. proceeded to consider the question whether the Magistrate can defer the enquiry and yet ask for interim bond. His Lordship observed ;

A question was raised before us whether the Magistrate can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. Other learned Judges are of the opinion that Sub-sections (1) and (2) envisage that the Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording his reasons in writing can the interim bond be asked for.

After referring to some of the cases which had taken the conflicting views, Hidayatullah, C.J., proceeded:

In our opinion the words of the section are quite clear. As said by Straight J. in Emper of v. Badhua ILR 6 All. 132, the order u/s 112 is on hearsay but the inquiry u/s 117 is to ascertain the truth of the necessary information. Sub-section (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the person in custody.... ''Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond or placing the person in custody in default.... The section even as it is drafter today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima fade case a person is to be put in jeopardy of detention" (at page 66 of the report).

By declaring that "it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case, a person is to be put in jeopardy of detention, Hidayatullah, C.J. in clear and unequivocal terms laid down the law that an order for interim bond u/s 117(3) can only be made after the Magistrate had "proceeded to inquire into the truth of the information and only after prima facie satisfying himself about the truth of the information". That view was reiterated in the same case by his Lordship by declaring:

It would make his action purely administrative if he were to pass the order for an interim bond without entering upon the enquiry and at least prima facie inquiring into the truth of the information on which the order calling upon the person to show cause is based. Neither the scheme of the chapter nor the scheme of Section 117 can bear such an interpretation" (at page 67 of the report).

In that case, Hidayatullah, C.J., spoke for himself and five other Judges composing the Constitution Bench. Bhargava, J., the only other member of the Constitution Bench, dissented from the aforesaid interpretation of Section 117(3) and observed:

I agree with the judgment of my Lord the Chief Justice, with the exception that I am unable to subscribe to the view that, in proceedings started u/s 107 of the Code of Criminal Procedure, the Magistrate can direct the person, in respect of whom an order u/s 112 had been made, to execute a bond, with or without sureties, for keeping the peace pending completion of the enquiry and, in default detain him in custody untill such bond is executed, only after he has entered upon the enquiry u/s 117(1).

and has found a prima facie case satisfying himself about the truth of the information on the basis of which the proceedings were started.

The aforesaid decision is, therefore, a clear authority for the proposition that an order u/s 117(3) of the old Code could be made by the Magistrate" only after he has entered upon the enquiry u/s 117(1) and has found a prima facie case satisfying himself about the truth of the information on the basis of which the proceedings were started". A similar view was expressed in Madhu Limaye v. Ved Murti 1972(1) S.C.A. 73, in which the order for interim bond against Madhu Limaye and Ors. was passed before commencing any enquiry merely after they had appeared before the Magistrate and the notice u/s 112 of the Code was read out to them and the case was adjourned to another dated for the statement of Madhu Limaye and Ors. who were being proceeded against. It was held by the Supreme Court in that case that the order was made without commencing to enquire into the truth of the information and was, therefore, bad. Hidayatullah, C.J., who spoke for the Supreme Court in that case also observed:

"It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. The stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and duriDg the completion of the enquiry postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear no body and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan or Ved Murti Bharti or any of the witnesses named in the challan. Nothing of this kind was done. Therefore, the proceedings for asking for an interim bond were completely illegal", (at) 80 of the report.

He further observed:

The petitioners were brought under the process of Chapter VIII. They were read over an u/s 112 and if interim bonds were required from them the Magistrate ought to have entered upon the inquiry and satisfied himself, at least, prima facie about the truth of the information in relation to the alleged facts. Without making any enquiry, neither could the Magistrate order the petitioners to be detained in custody nor require them to execute a bond with or without surety", (at p. 81 of the report).

This case also is an authority for the proposition that no order for interim bond u/s 117(3) can be made unless the Magistrate has entered upon the enquiry and satisfied himself, at least, prima facie, about the truth of the information in relation to the alleged facts. It is true that in this case the learned Magistrate had not even fixed the date for examination of witnesses, but the decision was based on the aforesaid principle.

Now coming to the facts of this case, can it be said that the Magistrate had entered upon the enquiry into the truth of the information received and had satisfied himself prima fade about their truth. The answer is clearly no. No attempt was made to verify the information received under police report already submitted the only document considered was the police report already submitted. The petitioner does not appear to have been heard even in the matter and he had not filed any show cause. The conclusion is, therefore, irresistible that the order was passed without the Magistrate entering upon the enquiry u/s 110(1) and without prima facie satisfying himself about the truth of the information on the basis of which the proceedings were started. The order is, therefore, clearly illegal and must be set aside.

I am conscious of the bench decision of this court in Nokha Singh v. Parvati Kuer 1974 B.B.C.J. 461, in which it was held that Section 117(1) Cr.P.C. does not lay down that enquiry does not commence unless a witness has been examined or the person proceeded against has been further interrogated and it was observed "when the person proceeded against appears in court in pursuance of the notice u/s 112, as in the instant, case, the stage of Section 117 is reached". The aforesaid observation must be read in the context of the facts of that case. In that, case, the persons proceeded against had not only appeared but had filed show cause and the petition for directing those persons to execute interim bonds had been referred to the police for eaquiry and report and it was after considering the show cause and the police report and also hearing the parties, that the order for execution of ad interim bonds was made in the instant case the petitioner did not file any petition showing cause, he has not heard and no documents were considered apart from the Nokha Singh''s case is, therefore, distinguishable. The decision in police report. The decision in Nathan Yadav v. State 1977 B.B.CJ. 357 is also distinguishable because in that case the Magistrate had applied his mind to the petition showing cause filed on behalf of the petitioners proceeded against.

I would, accordingly, allow the application and set aside the order of the learned Magistrate directing the petitioner to furnish interim bond.