Ibrahim vs State

K. Bhaskaran, J.

1 Sri M. Mohammed Moopan, the learned counsel for the revision petitioner, attacks the order passed by the learned District Magistrate, Ernakulam, in M. C No. 79 of 1973 dated 18-8-1973, as one without any propriety or legal basis. The facts are not clear from the order of the learned District Magistrate, an attested copy of which has been produced along with the revision petition. However, the following facts could be gathered from the facts stated by the revision petitioner in this petition. The petitioner was arrested by the Sub Inspector of Police, Puthencruz at 4-50 a.m. on 15-5-''73 and was produced before the Sub Magistrate''s Court, Ernakulam on 16-7-1973. The arrest was purported to be u/s 55(1)(a) and (b) of the Code of Criminal Procedure. The learned Sub Magistrate remanded the petitioner till 30-7-1973. But on 18-7-1973 the Sub Magistrate released the petitioner on bail and directed him to be present on 30-7-1973. On 30-7-1973 the Sub Magistrate directed the petitioner to be present before the District Magistrate''s Court, Ernakulam, on 4-8-1973.

On 4-8-1973 the revision petitioner appeared before the District Magistrate''s Court, Ernakulam. That day the court furnished copies of charge sheet filed by the Sub Inspector of Police for taking action against him u/s 110 (a) of the Cr.P.C. An application filed by the revision petitioner for releasing him on bail was granted by the court. But the revision petitioner was not in a position to produce sureties having solvency certificates to the satisfaction of the learned District Magistrate. For that reason the revision petitioner was remanded and the case (MC. 79 of 1973) was adjourned to 10-8-1973 for preliminary hearing. On 10-8-1973 the revision petitioner was produced before the court below and after preliminary hearing the case was adjourned to 18-8-73 for further steps. By that time the solvency certificates was filed by the sureties and the revision petitioner was released by the learned District Magistrate in view of his earlier order dated 4-8-1973. On 18-8-73 the preliminary order as contemplated u/s 112 Cr.P.C. was read over to the revision petitioner to which the revision petitioner answered that he had nothing to say. The learned District Magistrate ordered summons to charge witnesses Nos. 1 to 4 so as to appear on 31-8-1973 and to witnesses Nos 5 to 7 on 1-9-1973. In the meanwhile, on 18-8-1973 itself the learned District Magistrate cancelled the bail of the revision petitioner and remanded him till 31-8-1973. It is this order that is being challenged in this revision, and it reads as follows:-

18-8-1973 G.P. present. The petitioner was released on bail as per order in M.P. 1164/73. In Criminal Revision Petition 578/72, the High Court of Kerala, following Supreme Court decision Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, held that in proceeding u/s 110, before examining witnesses, the Magistrate cannot release the counter petitioner on bail. Magistrate can act only u/s 117(3) and there is no other provision to release the counter-petitioner on bail. In this case witnesses have not been examined. The bail granted is hereby cancelled. The counter petitioner is remanded for 14 days. Issue summons to C.W.I to 4 to 31-8, 5 to 7 to 1/9

Obviously the learned District Magistrate appears to have misunderstood the principle laid down in the decision of this Court referred to, which has subsequently been reported in Velu Ikkoran and another Vs. State of Kerala, . What the Division Bench laid down in that decision was that where "a person is in court either on account of a summons issued to him or is brought there in response to a warrant of arrest or as a result of the order under S. 112, it is incumbent upon the Magistrate straight away to make an enquiry under S. 117 (1) of the Code of Criminal Procedure as regards the truth of the information which has been laid before him under any of the Ss. 107, 108, 109 or 110. It is only after a prima facie case is made out satisfying the Magistrate about the truth of the information and after recording his reasons in writing that he can ask the person concerned to execute an interim bond. Once the Magistrate set in motion an enquiry under S. 117 (1) and (2), no question of any release on bail arises on the basis of S. 91, 167 or 344 of the Criminal Procedure Code. There arises no question of taking an interim bail from a person for his surety for the appearance of that person in court during an enquiry under Chapter VIII of the Code of the Criminal Procedure"

The procedure laid down in Chapter VIII of the Code is abundantly clear. It would appear that the procedure to be followed in respect of proceedings for prevention of offences as contemplated under Chapter VIII of the Code are to be governed by the detailed provisions contained in that Chapter itself. It is not necessary to deal with the scheme of the Chapter in detail. A person is required to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace or good behaviour for such a period as mentioned in the order either u/s 107 or 110 Cr.P.C. as the case may be A further order u/s 112 has to be passed setting forth the substance of the information received, the amount of the bond to be executed, the term for which it has to be in force and the number, character and class of sureties, if any, required. From the averments in the statement of facts it appears that in the instant case the proceedings initiated were u/s 110(a) of the Code and that an order u/s 112 also had been passed. The learned District Magistrate who passed the order u/s 112 Cr.P.C., ought to have immediately proceeded to enquire into the matter to satisfy himself whether there was truth in the information received and should have either passed an interim order after satisfying himself in that behalf or should have let off the person if there was no material to substantiate that the information received was true. The learned District magistrate appears to be under the impression that the decision of this Court in Velu Ikkoran and another Vs. State of Kerala, and that of the Supreme Court in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, had laid down that the most convenient way of dealing with a person brought before the court under such circumstances was to remand him to custody, not for a day or two but even for fourteen days at one stretch. The object of the provisions contained in Chapter VIII of the Code is far from what the learned District Magistrate appears to have understood to be.

The decision of the Supreme Court in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, to which reference was made by Moidu J. in the decision reported in Velu Ikkoran and another Vs. State of Kerala, and the decision of the Supreme Court Madhu Limaye and Another Vs. Ved Murti and Others, would go to show t at the view taken by the learned District Magistrate is not only perverse but also diametrically opposed to the spirit of the principles laid down by the Supreme Court. The position of law on this question cannot be more succinctly expressed than in the following words of Hidayatullah C.J., appearing in the last paragraph of the judgment in Madhu Limaye and Another Vs. Ved Murti and Others, .

It is quite clear that the Magistrate was too much in hurry. He did not read the law to inform himself about what he was to do. Having the petitioners before him and having read to them the order u/s 112 it was his duty either to release them unconditionally or to ask them to give an interim bond for good conduct but only after he has started inquiring into the truth of the information

Again Hidayatullah C.J., (speaking for himself and on behalf of Shelat, Mitter, Vaidialingam, Ray and Dua, JJ.) in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, of the judgment, at the page 2500 and 2501, has made the following observations:-

In our opinion the words of the section are quite clear. As said by Straight J, in Empress v. Babua, (1883) ILR 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. Sub-section (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 measures 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 powers of Magistrate. The facts must be of definite character.................... 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 jeopardy 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 something 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.

The following observation of Moidu J. in Velu Ikkoran and another Vs. State of Kerala, is also in consonance with the view expressed by the Supreme Court in the decisions referred to above.

....................There shall not be any time-lag between the appearance of the party before the Magistrate either in response to a summons or under order of an arrest warrant and the enquiry as required by sub-sections (1) and (2) of S. 117 after the order under S. 112 is drawn up. No question of granting a bail for appearance arises in such cases. Neither S. 91 nor S. 344 Cr.P.C. can be pressed into service for releasing the party on bail at that stage. Whether the party appeared before the Magistrate has to enter into an interim bond or whether he has to be discharged as a free citizen shall abide and follow the result of an enquiry to start with under Sub-Ss. (1) and (2) of S- 117.

Chapter VIII of the Code contains its own elaborate procedure for trial of a suspected person. This procedure which the legislature has with great emphasis specified for the trial of such cases, has to be precisely followed by Magistrates before whom persons are brought under the process of Chapter VIII. If the Magistrate, after the order under S. 112 Cr.P.C. is read over to the person proceeded against, entertains a doubt as to whether an interim bond is to be taken from him, he should enter upon an enquiry and satisfy himself at least prima facie about the truth of the information in relation to the alleged acts. Without making such an enquiry the Magistrate could neither order the person brought before him to be detained in custody nor require him to execute a bond for keeping good behaviour or for keeping the peace, as the case may be.

In the instant case, it may be noted, the revision petitioner was not under custody at the time when the impugned order dated 18-8-1973 was passed. All that the learned District Magistrate was required to do was to enquire into the matter to satisfy himself whether there was ground for requiring the revision petitioner to execute an interim bond for keeping good behaviour, or to let him off without his requiring to execute such a bond. The learned District Magistrate has chosen to remand the revision petitioner for 14 days expressing a sort of helplessness in the light of the decision of the Supreme Court followed by the Division Bench of this Court in Velu Ikkoran and another Vs. State of Kerala, . It looks rather paradoxical that the decisions of the Supreme Court and this Court which laid emphasis on the freedom of citizens have been made use of by the learned District Magistrate to curtail the freedom of the revision petitioner. The decision reported in Govinder Singh Verma and Another Vs. Mrs. Bachubhai T. Pestonji and Another, may not apply to the facts of the present case, because that was a case where in the enquiry u/s 117(1) and (2) Cr.P.C, as many as two witnesses had already been examined, and though the Magistrate had directed the execution of the bond purporting to be u/s 91 of the Code, the Supreme Court in agreement with the High Court, had held that it could be construed to bean interim bond executed in terms of section 117 (3) of the Code. That is not the position here. Here, even for requiring the revision petitioner to execute an interim bond there should have been some enquiry. What the learned District Magistrate did in the present case was to remand the revision petitioner to custody for 14 days, even without starting an enquiry, which was manifestly, illegal, as, at that stage, he could not have been ordered to execute even an interim bond for good behaviour.

For the reasons stated above the revision is allowed and the order under challenge is set aside. Carbon copies of this order will be given to the parties on usual terms.