Harbans Singh vs State of Punjab and ors.

B. S. Nehra, J. (Oral)

This is petition under section 482 Cr.P.C. for quashing the calender/complaint registered against the petitioner under section 107/151 Cr.P.C. and also for quashing the order of the Executive Magistrate dated 19.4.91 by which the petitioner has been asked to furnish a bail bond for his appearance during the pendency of the proceedings mentioned above

A calender under Section 107 read with section 151 Cr.P.C. was filed before the Executive Magistrate, Jalandhar by the Police for binding down Harjinder Singh, Devinder Singh, Jaspal Singh, Harbans Singh and Mohinder Kaur. In this calender it has been stated by ASI, P. S. Division No. 1, Jalandhar that the complainant, Gurdial Singh, in his application has complained that his daughter Ravinder Kaur has been killed by the aforesaid five accused by burning during the night intervening 7/81290. These accused were arrested in the said case, but were later on released on bail. All the accused are allegedly threatening the complainant and his family members and telling them that they can do whatever they like. On this the Police called them to the Police Station and made enquiries. The allegation of the Police is that the accused are roaming openly and proclaiming to the residents of the Colony andthe complainant that they have killed the girl and now they have come out. and that, they (complainant and residents of the locality) can do whatever they like. It is alleged that the accused are dangerous persons and had been bailed out in'' a heinous crime. The accused have been arrested under section 1071151 Cr.PC. The Police requested the Executive Magistrate to direct the accused to furnish heavy surety bond for, keeping peace so that they may not commit any serious offence.

The date on this calender shows that it was presented before the Executive Magistrate on 19.4.91. The petitioner asserts that on the same day, Shri J. S. Mahi, Executive Magistrate called upon the petitioner and other accused to furnish, bail bond for a sum of Rs. 5000/ each with sureties otherwise they were required to be sent up to the judicial lock up.

It has been contended by the learned counsel for the petitioner that the prosecution has failed to make out a case for initiation of the proceedings under Section 107/151 Cr.P.C. This contention appears to have substance for there is no material brought out in the calender presented by the Police before the Executive Magistrate that the petitioners had committed any breach of peace for which proceedings were required to be initiated against them.

Learned counsel for the petitioner further contended that no order has been recorded by the Executive Magistrate within the meaning of section 111 Cr.P.C. which envisages that whenever a Magistrate while acting under section 107 Cr.P.C., deems it necessary to require any person to show cause under this section, he has to 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 requited to be in force, and the number, character and class of sureties required to be furnished. The grievance of the petitioner is that no order whatsoever has been passed by the learned Magistrate, under this section. On the contrary, learned counsel contends the learned Magistrate has chosen to proceed arbitrarily to call upon the petitioner and his companions to furnish bail bonds merely for their appearance on various dates of hearing before the learned Magistrate. Learned counsel further contends that the learned Executive Magistrate has no jurisdiction to do this. A careful reading of section 111 Cr.P.C. leaves no manner of doubt to reach the conclusion that it is incumbent on the Executive Magistrate under section 107 Cr.P.C. that he has to pass an order 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 which is required to be furnished before an accused, under these proceedings, can be called upon to furnish surety bond. In Ajmer Singh v. State of Haryana, 1988(2) Recent Criminal Reports 341 : 1988 CRC 372 , it was held by the Punjab and Haryana High Court that the provisions under section 111 Cr.P.C. are mandatory. It is incumbent on the Magistrate acting under these provisions to pass an order in accordance with the provisions of the section. Apparently, the Magistrate has committed a grave illegality in violating these provisions and his order is required to be quashed on that ground alone.

For the foregoing reasons, the petition is accepted and the impugned order of the learned Executive Magistrate requiring the petitioner to furnish bail bond to secure his presence during the pendency of the trial as also the proceedings before the Learned Magistrate are hereby quashed.