Bangali Ahir and Another vs Chaturbhuj Prasad

Dhavle, J.—This is an application in revision against an order u/s 107 read with Section 118, Criminal P.C., requiring the two petitioners to execute bonds for one thousand rupees each, with one surety in a like amount each, for keeping the peace for a period of one year. The order was passed by a first class Magistrate of Motihari, and an appeal against that order was heard by the Additional Sessions Judge and dismissed.

It has been contended on behalf of the petitioners that the whole proceeding u/s 107 was bad in its inception because the notice requiring them u/s 107 to show cause was defective; and the defect is said to consist in the fact that the notice does not specify any particular wrongful act that the Magistrate was satisfied was likely to be committed by the petitioners. Proceedings are liable to be quashed on such a ground, but not after the whole matter has been inquired into, unless there is a reasonable suggestion of possible prejudice, or unless the defect goes to the jurisdiction.

The learned advocate for the opposite party before me has in this connexion referred to Jai Singh v. Emperor (22) 64 I.C. 666, decided in this Court in 1921, the head-note of which runs as follows:

The mere fact that an order u/s 112, Criminal P.C., requiring the accused to show cause why they should not be proceeded with u/s 107 of the Code, does not set forth the substances of the information received by the Magistrate, will not vitiate the proceedings if in fact it did not in any degree prejudice the accused and they had ample notice of the case made against them and ample time to produce their evidence.

The present case began with a petition made to the Sub-divisional Magistrate by the opposite party on 19th March last, in which definite allegations were made against the petitioners. Upon this, the Magistrate called upon the petitioners to appear and show cause why action should not be taken against them. It was thus that they were heard on 2nd April and the Magistrate then observed that there was undoubtedly strong feeling between the parties

and it may lead to a breach of the peace at any moment. There are, specific allegations of bad conduct on, the part of the opposite party (that is to say, the petitioners) which can either be proved or the reverse.

The conclusion that in order to prevent a breach of the peace, action was necessary u/s 107 was thus arrived at after what the Magistrate calls a preliminary hearing which the law has not considered necessary, and which gave the petitioners an extra opportunity of showing that they should not be proceeded against under the section. The usual proceeding was then drawn up; it begins with a, reference to the petition of 19th March and the "preliminary hearing of the case," and then states that the Magistrate was of opinion that there being specific allegations of bad conduct on the part of the petitioners, they should be bound down to keep the peace for one year. How can it then be contended with any show of reason that the petitioners were prejudiced in any way by an omission to set forth the substance of the information in the initial proceeding? The petitioners were fully aware of what it was for which in the beginning they were going to be proceeded against, and for which they were afterwards actually proceeded against.

In view of the reference to the petition of 19th March and the preliminary hearing that followed it, I am not prepared to accept the contention that the proceeding was vague or that the failure of the Sub-divisional Magistrate to set out details of all of the specific acts alleged in the application of 19th March, affects the jurisdiction of the trying Magistrate in the matter so as to make the proceeding void.

It has also been urged that neither the initial proceeding nor the findings of the Magistrate say anything about any future apprehension of a breach of the peace. But, in the first place, the petition of 19th March speaks in the last paragraph of the opposite party reasonably apprehending that his life and properties are in danger

and the opposite parties (i.e., the petitioners before me) are holding out threats and spreading false rumours against the petitioner in the localities.

This application, as I have already indicated, was incorporated by reference in the initial proceeding drawn up by the Sub-divisional Magistrate. His order of 2nd April from which I have already quoted, shows quite clearly that he was himself inclined at that stage to accept the opposite party''s apprehension of danger to life and property and the findings of the trying Magistrate, which have been endorsed by the Additional Sessions Judge on appeal, leave no doubt that he held in the end that the apprehension was made out. These findings are:

There is sufficient evidence to prove that the accused persons instigated Sheobaran, and others to dispossess the first party of his zarpeshgi land. This led to an assault on a man of the first party. The accused further wanted to dispossess the first party of another land which was in his zarpesghi. The first party sent his men on the land to transplant sugarcane. Thereupon, Sheobaran set fire to his own house for falsely implicating the men of the first party. The evidence further proved that the accused persons give threats of, violence to first party.

Then comes the concluding observation that

all these facts, taken together are sufficient to show that the accused persons are bent upon committing a breach of the peace and disturbing the public tranquillity.

The findings just quoted perhaps become-a little clearer if we bear it in mind that a dispute was going on between the firsts party and the petitioners for this among other reasons, that the first party has taken a zarpeshgi of some land from Mt. Bigni and the petitioner. Gopi Ahir has taken a zarpesghi, from the same lady, according to the opposite party, of the same land, and is therefore trying to dispossess him. Mr. Mahabir Prasad for the petitioners says that the first party was given some parts, of the land while other parts were given to the petitioners. Be this as it may, it is clear that the trial Court has found a series of land disputes between the two parties which have led to assaults and violence and threats of violence.

The inference from them is too plain to be successfully attacked in argument. Mr. Mahabir Prasad has also cited In re Maruthapali Goundar AIR 1937 Mad. 356, and contended that the act of which information is given and in respect of which security is required u/s 107 must be an act which is shown to be in contemplation at the time of the information given and not merely one a repetition of which may be expected or apprehended from past misconduct of the kind without anything further. This proposition must, it seems to me, be read in the light of the facts of that case.

The section was considered in Jaguji Rai and Another Vs. Emperor, where the Magistrate proceeded on information from what he considered a reliable source, about a probable breach of the peace without reference to any definite acts which the party proceeded against, intended to commit; the evidence taken established enmity between the parties, past acts not of a peaceful nature, and words or expressions which pointed to a probable breach of the peace in future, and it was held that the order requiring security was not open to exception.

In my opinion, the lower Courts did not in the present case fall into any error in concluding that the petitioners are likely to indulge in violence towards the first party in connexion with these zarpeshgis, having regard not only to the zarpeshgi disputes and the past behaviours of the petitioners but also to the threats which it has been proved they have been giving to the first party.

It did appear to me at one time that the security demanded from the petitioners was excessive, for I was informed that the petitioners are chaukidars. The learned advocate for the opposite party has, however, shown that not only are the petitioners (though chaukidars) substantial men but that they have in fact had no difficulty whatsoever in furnishing the security demanded. It was apparently in ignorance of this fact that the learned advocate who moved for and obtained a rule for these petitioners in revision also obtained an order that the execution of the bonds be stayed pending the hearing of this application.

The application is dismissed.