Dhaneshwar Mallah and Others vs The State of Bihar

S.N.P. Singh, J.—This application u/s 561-A of the Code of Criminal Procedure has been filed by eighteen'' persons, who have been proceeded against u/s 107 of the Code of CriminaF Procedure. The petitioners have made this, application for quashing the orders dated1 the 16th of June, 1971, and the 17th of June, 1971, passed by the learned Sub-Divisional Magistrate, Sadar, Patna, copies of which have been made Annexures ''1'' and'' ''I/A'' respectively, to the application.

The learned Sub-Divisional Magistrate, Sadar, Patna, drew up the proceeding u/s 107 of the Code of Criminal Procedure against the petitioners oir 31-5-1971 and they were asked to show cause as to why they should not be ordered'' to execute a bond of Rs. 1000/- each with-two sureties of the like amount each to? keep peace for a period of one year. Cause-was to be shown by the 16th June, 1971. It appears that on the 16th of June, 1971. a petition for time was filed on behalf of one Murlidhar. The petitioners neither appeared in person nor any petition was filed on their behalf for time. The learned Sub-Divisional Magistrate thereupon issued bailable warrants of arrest against the petitioners. On the 17th of June, 1971, an application was filed on behalf of the petitioners for recalling the warrants of arrest. The learned Sub-Divisional Magistrate recalled the warrants of arrest but directed the petitioners to furnish bail of Rs. 1000/-each. In the present application the petitioners have challenged the jurisdiction of the learned Sub-Divisional Magistrate to issue warrants of arrest against them and to call upon them to furnish bail bonds.

In order to appreciate the con-''tention which has been raised on behalf of the petitioners, it is necessary to refer to some of the provisions of Chapter VIII of the Code of Criminal Procedure. Section 107(1) provides that "Whenever a Presidency Magistrate, District Magistrate, Sub-Divisionar Magistrate or Magistrate of the first class is informed that, any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding -may, in_manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix." Sub-section (3) of Section 107 lays down that "when any Magistrate not empowered to proceed under Sub-section (1) has reason to believe that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful .act that may probably occasion a breach of the peace or disturb the public tranquillity, and that such breach of the peace or disturbance cannot be prevented otherwise than bv detaining such person in custody, -such Magistrate may, after recording his reasons, issue a warrant for his arrest (if he is not already in custody or before the court) and may send him before a Magistrate empowered to deal with the case, together with a copy of his reasons." Sub-section (4) of Section 107 reads as under:

A Magistrate before whom a person is sent under Sub-section (3) may in his discretion detain such person in custody pending further action by himself under this Chapter.

Section 112 is the next relevant section and It reads as follows:

When a Magistrate acting u/s 107, Section 108, Section 109 or Section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, 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, character and class of sureties (if any) required.

As provided u/s 113, if the person concerned is present in Court, the order shall be read over to him, or, if he so desires, the substance thereof shall be explained to him. Section 114 runs thus:

If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court:

Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the-peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

Section 115 lays down that every summons or warrant issued u/s 114 shall be accompanied by a copy of the order made u/s 112. u/s 116 the Magistrate has been given power to dispense with the personal attendance of any person called upon to show cause and for permitting him to appear by a pleader. Section 117(1) and (2) lays down the procedure which is to be followed in an inquiry. Sub-section (3) empowers the Magistrate to take interim bond in order to keep the peace etc., until the conclusion of the inquiry and also empowers him to detain any person proceeded against in custody until such bond is executed or, in default of execution, until the inquiry is concluded. As provided u/s 118, if upon an inquiry it is proved that it is necessary for keeping the peace etc., that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate is to make an order accordingly. If, however, on an inquiry u/s 117 it is not proved that it is necessary for keeping the peace etc., that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate must discharge that person as provided u/s 119. Another relevant provision to which a reference may be made is Section 123(1). Sub-section (1) of Section 123 empowers the Magistrate to commit to prison any person, who has been ordered to give security u/s 118, on his failure to give such security on or before the date on which the period for which such security is to be given commences.

It was submitted by learned Counsel apnearine for the petitioners that as provided u/s 114 of the Code of Criminal Procedure the Magistrate can issue only a summons requiring a person against whom an order u/s 112 has been passed to appear and not a warrant of arrest. There is substance in this contention. In the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, while considering the scope of Sections 113 to 115 of the Code of Criminal Procedure, their Lordships of the Supreme Court in paragraphs 38 and 39 of the judgment observed as follows:

Next follow three sections Sections 113-115. They deal with the person''s presence. Section 113 deals with the situation when the person is present in court, then the order shall be read over to him .and if he so desires, the substance of it shall be explained to him. This is not a mere formality. The intention is to explain to the person what the allegations against him 1 are. The next section (Section 114) deals with a situation when the person is not present in court. There the option is twofold. Ordinarily, a summons must issue to him "but in cases where the immediate arrest of the person is necessary a warrant for his arrest may issue. This is however subject to the qualification that there must be a report of a Police Officer or other information in that behalf and the breach of the peace cannot otherwise be prevented. The Magistrate must not act on an oral information but must record the substance of it before issuing a warrant. The Section also envisages a situation in which the person is already in custody. In that case the Magistrate shall issue a warrant directing the Officer having the custody to produce that person. The provisions of this section are quite clearly reasonable in the three circumstances it deals with. If the presence of the person is to be secured, a summons to Tiim is the normal course except in the other two cases.

Section 115 then provides that such summons or warrant u/s 114, as the case may be, must be accompanied by the order u/s 112 and the person serving or executing the summons or warrant must serve the order on the person.

In the instant case there was no report of the police officer or other information before the Magistrate that there was reason to fear the commission of a breach of the peace and that such a breach of the peace could not be prevented other than by the immediate arrest of the petitioners and as such it was not a case in which the proviso to Section 114 was attracted. The provision of the second part of Section 114 was inapplicable because the petitioners were not in custody. That being the position, the Magistrate was not legally competent to issue warrants of arrest. As pointed out by their Lordships of the Supreme Court in paragraph 36 of the judgment of that case, the expression "in the manner hereinafter provided" occurring in Section 107 of the Code of Criminal Procedure clearly indicates that it is not open to a Magistrate to depart from the procedure to any substantial extent. The power of the Magistrate to issue warrant of arrest against a person in respect of whom an order u/s 112 has been passed is very limited. There is no provision in Section 114 or in any other section of Chapter VIII of the Code of Criminal Procedure empowering the Magistrate to issue warrant of arrest against a person if he fails to appear before him after the service of summons. It must, therefore, be held that the Magistrate was not legally justified in issuing warrants of arrest against the petitioners for their appearance. Since the order for issue of warrants of arrest i was recalled by the order dated the 17th of June, 1971, it is not necessary to quash the, order dated the 16th of June, 1971.

The only point which remains to be considered is whether the order of the Magistrate dated the 17th of June, 1971 calling upon the petitioners to execute bail bonds of Rs. 3000/- each for their appearance in Court is valid. learned Counsel appearing for the petitioners in support of the contention that the Magistrate had no jurisdiction to ask the petitioners to furnish bail for their appearance in Court relied mainly on the observation made by their Lordships of the Supreme Court in paragraphs 48 and 49 of the judgment in Madhu Limaye''s case, referred to above. In paragraph 48 of the judgment it was observed by Chief Justice Hidayatullah, who delivered the majority judgment, as follows :

Before we leave this topic it is necessary to emphasise that there is no room for invocation of other provisions of the Code such as Section 55 or 91. In some of the cases of the High Courts, to which refer-ence is not necessary, recourse has been taken to these provisions in aid of Chapter VIII. Apart from the fact (which we have sufficiently emphasised above) that Section 55 deals with special cases of arrest and cannot be made applicable Section 107 itself speaks that the procedure of Chapter VIII should be followed, where Sections 112, 113 and 114 of the Code prescribe their own procedures. Similarly, Section 91 may be available till the order u/s 112 is drawn up. After it is drawn up the Magistrate has to act under Sections 113 and 117(1). Then there is no room for Section 91.

Reference was made to the case of Vasu Deo Ojha and Others Vs. State of Uttar Pradesh and Others, and it was observed that the reasoning in that case and some other cases is fallacious. It may be stated here that the facts of the Allahabad case were more or less similar to the facts of the present case. In that case after the notices u/s 112 of the Code of Criminal Procedure had been read over and explained to the petitioners of that case the Magistrate asked them to furnish two sureties of Rs. 1000/- each as also a personal bond of the like amount for their appearance and as those persons declined to furnish the security asked for they were sent to jail under his orders. It was held by a Bench of the Allahabad High Court that the Magistrate had power to ask the persons to execute bond for their appearance. It was observed in that case as follows:

Turning now to Section 114, Criminal Procedure Code, one finds that the Magistrate who makes an order u/s 112, Criminal P. C, has the power to issue a summons requiring the person proceeded against to appear. The Magistrate is therefore an officer who is empowered to issue a summons for the appearance of the person proceeded against within the meaning of Section 91.

That being so, he is, in our view, authorised to ask the person proceeded against to furnish security also for appearance before him.

Their Lordships of the Supreme Court not only held that the reasoning in the Allahabad case and some other cases is fallacious but further clearly stated in paragraph 49 as follows:

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.

In view of the decision of the Supreme Court in Madhu Limaye''si case, it must be held that a Magistrate has no jurisdiction to ask a person in respect of whom an order u/s 112 of the Code of Criminal Procedure has been made to furnish bail for his appearance in Court.

In the course of argument, learned Counsel appearing for the opposite party referred to Section 496 of the Code of Criminal Procedure and submitted that the Magistrate had jurisdiction to ask for bail from the petitioners under that section. Section 496 reads as under:

When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

Provided, further, that nothing in this section shall be deemed to affect the provisions of Section 107, Sub-section (4), or Section 117, Sub-section (3).

learned Counsel appearing for the petitioners, relying on the observation of the Supreme Court made in paragraph 48 of the-judgment, which I have already quoted irf extenso, contended that the provisions of Section 496 are not applicable in a proceeding u/s 107 of the Code of Criminal Procedure. In my opinion, it is not necessary in the instant case to decide the question whether the provisions of Section 496 of the Code of Criminal Procedure are applicable or not in a proceeding undes Section 107 of the Code of Criminal Procedure. Suffice it to state that in view of the decision of the Supreme Court, referred to above, it must be held that the Magistrate cannot ask a person, in respect of whom an order u/s 112 has been made, to furnish security or bail for his appearance in Court.

For the foregoing reasons, the impugned order of the learned Sub-Divisional Magistrate dated the 17th of June, 1971, asking the petitioners to furnish baif bonds of Rs. 1000/-, is quashed and the application is allowed to that extent only.

A.N. Mukharji, J.

I agree.