Abraham alias Aurachen vs State of Kerala

Govinda Menon, J.—This is a reference made by the learned Sessions Judge of Ernakulam recommending that the order passed by the Executive First Class Magistrate of Moovattupuzha u/s 117 (3) Cr. P.C. be set aside. On a report received from the Sub-Inspector of Police, Perumbavoor that security proceedings be started against the counter-petitioner, the learned First Class Magistrate was satisfied that action should be taken u/s 107 Cr. P.C. and he passed a preliminary order u/s 112 Cr. P.C. setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number of sureties required. Summons was duly served on the counter-petitioner and he appeared in court and his statement was recorded. Some time after this the Sub-Inspector of Police presented a report to the Magistrate that immediate measures are necessary to prevent a breach of peace and prayed for action u/s 117 (3) by taking an interim bond from the counter-petitioner pending the conclusion of the enquiry. The learned Magistrate did not take it as a routine matter, but recorded elaborate evidence with notice to the counter-petitioner and finding that in view of the extremely unruly conduct and inclination to commit acts of violence immediate measures are necessary and ordered interim bond be taken from the counter-petitioner.

Sub-section (3) to Section 117 has been introduced in the Code to empower the Magistrate to direct a person against whom an order u/s 112 has been made to execute an interim bond till the completion of the enquiry for the prevention of a breach of the peace or a disturbance of the public tranquility or for the public safety pending the completion of the enquiry u/s 117 (1). It is for the Magistrate to be satisfied on proper materials that immediate measures are necessary and that there is real urgency for ordering an interim bond to be taken.

I may in this connection refer to the case In re Swamikannu Padayachi (1952-2 M. L. J. 669) wherein Ramaswamy J. observed:

In regard to the taking of interim bonds, the Magistrate who is responsible for maintaining peace in his locality is the proper judge of what should be done in the exigencies and circumstances of the case rendering immediate measures necessary for preventing a breach of the peace, etc., and the High Court will not ordinarily interfere in revision unless it is shown that the order is manifestly perverse and that there were no grounds at all for passing such an order and that a failure of justice resulted. In Re: Muthuswami Chettiar and Others, ; In re Kavathan Patta Raju ( A. I. R. 1920 Mad. 1014).

In this case the learned Magistrate has directed his attention to the matter, had taken evidence to satisfy himself that action is necessary and has given reasons for the action taken and has not passed the impugned order merely as a matter of routine and has considered the question whether there was an emergency for him to act. I do not find anything wrong in the procedure adopted by the learned Magistrate and there was sufficient material to justify the order.

Now the question that is raised is whether the Magistrate could rely on facts and circumstances that happened after the passing of the order u/s 112 in support of his order u/s 117 (3). The learned Sessions Judge seems to think that he cannot and he is of the view that in such a case a fresh order u/s 112 would have to be passed before the counter-petitioner is asked to execute an interim bond based on such materials. I do not think this view is correct. It is true that an order u/s 112 is analogous to a charge framed in the case of a regular trial of an accused person for an offence. The order has to be read over to the person in respect of whom it is made although the Code does not provide that he should plead to it. The order u/s 112 must contain a statement in abstract of the prosecution case. No fresh incidents can be enquired into unless the original preliminary order u/s 112 is amended or a fresh order in respect of all those items is passed and the accused is made aware of the fresh accusations made against him. But all this would apply to the final order to be passed. Here the question is whether subsequent events could be taken note of by the learned Magistrate in ordering an interim bond to be taken. No decisions holding this view have been brought to my notice. In fact in some of the decisions that I have come across, the argument raised was that an order u/s 117 (3) must be based on evidence over and above that upon which the order u/s 112 has been based. I may refer to the case in Emperor v. Ghulam Muhammad Jan Muhammad (44 Cr. L. J. 779). In that case several complaints had been received against the counter-petitioner that he was harassing people in various ways and basing on that an order u/s 112 was passed. On the same materials the learned Magistrate passed orders u/s 117 (3) also. It was contended that there must be some further materials on which an order u/s 117 (3) could be based. It was held that the fact that the same information supports, and the same statements are the basis of both orders, does not offend either against the provisions of the Criminal Procedure Code or against the interpretation of those provisions.

Such an argument was negatived in the case in Thirunavakkarasu v. The State (A. I. R. 1959 Mad. 339). In that case dealing with this point Ramaswami J. referring to various decisions stated:

The Magistrate must direct his consideration particularly to the question of emergency and the necessity of immediate measures as a separate case. But this does not mean that he should conduct an enquiry within an enquiry, take evidence of witnesses on oath and their cross-examination in the usual manner. If the Magistrate is satisfied that an emergency exists and urgent orders are necessary, he can act upon the application of the police officer or upon the sworn testimony of a police Prosecutor given in the witness-box or in the form of affidavits. An order under sub-section (3) of Section 117 passed after considering the question of emergency as a separate question is not bad merely because the Maistrate has based it on the same information which was the basis of his order u/s 112.

There can therefore be no legal objection in the Magistrate relying on the report of the police bringing to his notice circumstances which necessitate the taking of interim bond and also that there is urgency. Action under Sections 112 and 117 of the Code are judicial acts and the Magistrate should not act arbitrarily. There must be information of a nature which would convince the Magistrate that there is likelihood of a breach of the peace and urgent action is necessary. What is reasonably sufficient to satisfy the Magistrate would depend upon the particular facts of each case. Whether it is necessary in the interest of keeping the peace to take security from any person is a question which primarily concerns the Executive First Class Magistrate and the police. Orders passed under Chapter VIII of the Code are no doubt revisable by the High Court, but the High Court is not a court of appeal and will not ordinarily interfere on the merits, provided the order shows that the Magistrate has really considered the evidence on record and acted in a legal manner in compliance with the statutory requirements.

I, therefore, find no grounds to interfere with the order passed by the learned Magistrate. The order directing the counter-petitioner to execute an interim bond is confirmed. The Executive First Class Magistrate is directed to dispose of the matter as expeditiously as possible. The reference is answered as above.