Bakshi Singh vs F.J.Hart and Another

(1) On a petition filed by F. J. Hart, (hereinafter called 'the applicant'), the Additional District Magistrate (Executive), Srinagar, acting under section

107 of the Code of Criminal Procedure, issued notice to Bakshi Singh and Ahmad Lone, (hereinafter called 'the nonapplicants') to show cause

why they should not be ordered to execute a bond in a sum of Rs. 1, OOO/ each for keeping peace for a period of one year. In response to the

notice the nonapplicants appeared in his court on 161174. The learned Magistrate furnished a copy of the application to them & asked them to file

their objections on the next hearing.

Alongside he ordered the nonapplicants to execute an interim bond under section 117 (3) Cr. P. C. for keeping peace till the conclusion of the

inquiry. Aggrieved by the order asking for the interim bond, one of the nonapplicants, namely, Bakshi Singh has filed this petition invoking the

jurisdiction of this court under section 561A Cr. P. C. and in the alternative, its revisional jurisdiction to quash the order.

(2) opposing the petition, Mr. Harbons Singh appearing for Mr. F.J. Hart, tried to justify the order on the following observations of the Supreme

Court in A. I. R. 1971 SC. 2486.

There is also no question of bail to the person because if instead of an interim bond, bail for appearance was admissible Chapter VIII would

undoubtedly have said so. Further bail is only for the continued appearance of a person and not to prevent him from committing certain acts. To

release a person being proceeded against under SS. 107/112 of the Code is to frustrate the very purpose of the proceeding unless his good

behavior is ensured by taking a bond in that behalf.

(3) In that case the Supreme Court has called upon to consider the constitutional validity of section 107 Cr. P. C. In dealing with this question the

court indicated how the provisions of this section and allied sections in Chapter VIII of the Code of Criminal Procedure were to be understood

and applied and came to the conclusion that the section did not suffer from vice of unconstitutionality. Dealing with section 117, the Court

observed :

Then follows S. 117. That section (omitting the proviso to the third subsection and omitting subsections (4) and (5) which do not concern us) may

be read here :

Inquiry as to truth of information.

1) When an order under section 112 has been read or explained under section 113 to a person present in Court, or when any person appears or is

brought before a Magistrate in compliance with or in execution of a summons or warrant issued under S. 114, the Magistrate shall proceed to

inquire into the truth of the information upon which action has been taken, and to take such evidence as may appear necessary.

2) Such inquiry shall be made, as nearly as may be practicable in the manner hereinafter prescribed for conducting trials and recording evidence in

summons cases.

3) Pending the completion of the inquiry under subsection (1) the magistrate, if he considers that immediate measure are necessary for the

prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for

reasons to be recorded in writing, direct in the person in respect of whom the order under section 112 has been made to execute a bond, with or

without sureties, for keeping the peace or maintaining good behavior until the conclusion of the inquiry, and may detain him in custody until such

bond is executed or in default of execution, until the enquiry is concluded.

The first subsection read with the second requires the Magistrate to proceed to inquire into the truth of the information. The third subsection

enables the Magistrate to ask for an interim bond pending the completion of the inquiry by him. This is conditioned by the fact that immediate

measure are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for

prevention of public safety. This is applicable where the person is not in custody and his being at large without a bond may endanger public safety

etc. The Magistrate has to justify his action by reasons to be recorded in writing. If the person falls to execute a bond, with or without sureties, the

Magistrate is empowered to detain him in custody.

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 section 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 Ss. (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. Some of the cases on the previous view are. Emperor V. Nabi Bux, AIR. 1942 Sind 86 Dulal Chandra

Mondal V. State, AIR 1953 Cal. 238, Gani Genal V. State, AIR 1959 J&K 125 and Laxmi Lal V. Bherulal AIR 1958 Raj 349. Those

representing the other view are. In Muttuswani, ILR (1940) Mad. 335AIR 1940 Mad 23) (FB). In reVenkatasubba Reddy, AIR 1955 Andh Pra

96, Jagdish Prasad V. State, AIR 1957 Pat 106, Jalaluddin Kunju Vs. State, A. 1 R. 1952 Trav Co. 262, shravan Kumar Gupta V.

Superintendent District Jail Mathura . AIR 1957 All 189, Jangir Singh Vs. The State, AIR 1960 Punj. 225, Rama Gowda Vs State of Mysore,

AIR 3960 Mys 259 and Ratilal Jasraj V. State A. I. R. 1956 Bom 385.

In our opinion the words of the Section are quite clear. As said by Straight J. In Empress V. Babua, (1883) I. L. R. 6 All 132, the order under S.

112 is on hearsay but the inquiry under S. 117 is to ascertain the truth of the necessary information. SubSection (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 measure are

necessary, and in default it is necessary to put the person in custody. Therefore, as the liberty of a person is involved, and that person is being

proceeded against on information and suspicion, it is necessary to put a strict construction upon the power of Magistrate. The facts must be of

definite character. In Nafar Chandra Pal V. Emperor, 28 Cal. WN 23( AIR 1924 Cal 114) there was only a petition and a report and these were

not found sufficient material. In some of the cases before us no effort was made by the Magistrate to inquire into the truth of the allegation. The

Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely one sided. It cannot be

described as an inquiry within an inquiry as has been said in some cases. Some inquiry has to he 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, (emphasis supplied)

In an old case reported in A. D. Dunne V. Hem Chunder, (1869) 12 Suth WR Cr. 60 (FB) a Full Bench of the Calcutta High Court went into the

matter. The case arose before the present Code of Criminal Procedure and, therefore, there was no provision for an interim bond, but what Sir

Barnes Peacock C. J. said applies to the changed law also not only with regard to the ultimate order but also to the interim order for a bond. The

section even as it is drafted 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 facie case a person is to be put

in jeoparady of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final

order unless some thing to the contrary is established. Therefore it is not open to a Magistrate to adjourn the case and in the interval to send a

person to jail if he fails to furnish a bond, if this were the law a bond could always be insisted upon before even the inquiry began and that is neither

the sense of the law nor the wording or arrangement of the sections already noticed.

(emphasis supplied)

(4) Thus, on the authority of these observations the law is well settled that in proceedings started under section 107 of the Code of Criminal

Procedure, a Magistrate can direct a. person, in respect of whom an order under section 112 has been made, to execute an interim bond for

keeping peace pending completion of the inquiry and, in default detain him in custody until such bond is executed only after he has entered upon the

inquiry under section 117(1) and satisfied himself at least prima facie about the truth of the allegations on which the proceeding were started. The

observations relied on by Mr. Harbans Singh are entirely beside the point. They are intended to convey that bail is not a substitute for an interim

bond where such bond should appropriately basked for.

(5) On this principle the court, in A. I, R. 1Q71 S. C. 2481, held that the action of the Magistrate asking for an interim bond was completely illegal

and made the following observations :

It appears to us that the powers of the Magistrate to ask for an interim bond were not property exercised in this case and consequently the order

to the petitioners to furnish interim bond could not be made. That 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 ""during 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 nobody 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 Bhatt or any of the witnessee named in challan. Nothing of this kind

was done. Therefore the proceedings for asking for an interim bond were completely illegal.

(6) The facts of that case were that the petitioners were arrested by the police under section 151 for the purpose of taking them before a

Magistrate to be bound over under Sec 107 of the Code of Criminal Procedure. When the Petitioners arrived in court, the Magistrate drew up an

order under Section 112 and read it over to them. They were asked to sign the order which they refused. The Magistrate passed ah order

adjourning the case. On the same date the Magistrate, on an application made by the prosecution, passed an order requiring the petitioners to

execute an interim bond to keep peace till the conclusion of the proceedings without first making an inquiry into the truth of the information as

required by section 117 (3).

(7) In the present case too the learned magistrates has passed the order for interim bond without making any efforts to enquire into the truth of the

allegations made in the petition on the basis were of the proceedings were started, nay, even without commencing the trial. On the principle of law

stated above his action is clearly illegal and must be set aside.

(8) In these circumstances the petition is allowed and the order of the trial Magistrate requiring the nonapplicants to furnish interim bond for

keeping peace till the completion of the inquiry is set aside. The order will not however, preclude the learned Magistrate from making a fresh order

in that behalf if, consistently with the requirements of law laid down by the Supreme Court, the exigencies of the case so demand. The parties are

directed to appear in the trial court on 7th June, 1976.