Jangi Gope and Others vs The State

Kanhaiya Singh, J.—This revisional application is against the order of the Additional Sessions Judge dated 8-7-57 affirming in appeal, the order of the Magistrate dated 20-3-56 directing the petitioners u/s 118 Cr. P.C. to execute bonds of Rs. 500 each with two sureties of like amount for keeping the peace for four months or, in default, to undergo simple imprisonment for the same period.

In support of this application Mr. Akbar Imam contended that the order of the learned Magistrate as wall as the order of the appellate Court was vague, inasmuch as, they did not specify the date by which the security bonds were to be furnished. It is true that no date was fixed for the furnishing of the security bonds, and it is unfortunate that the appellate Court also missed this point This omission, however, does not vitiate the entire order, and the irregularity may be cured by fixing a date by which the security bonds should be furnished. This contention, therefore, does not advance the petitioners'' case.

It was next contended by him that the order of the Magistrate has become nugatory by efflux of time, inasmuch as, the period of four months during which petitioners were directed to keep the peace had already expired. In support of this contention reliance was placed upon a decision of the Allahabad High Court in Babu Ram v. Rex AIR 1949 All 21. In that case Agarwala J., sitting singly, observed as follows :

"So far as the present case, however, is concerned one fact is quite clear and in my opinion, a decisive of the case. The initial orders made on 18th August 1947, required the parties concerned to furnish securities for a period of three months commencing from 18th August 1947. That period has long expired, and even if the learned Magistrate were now to hear the case upon the merits u/s 117, Criminal P. C., he would not be in a position to pass a final order in confirmation of his previous order and he would have to drop the proceedings. In the circumstances, the only proper order that can now be passed by me is to quash the original orders of the learned Magistrate dated 18-8-1947. I, therefore, accept these references and quash the orders passed by the learned City Magistrate on 18th August 1947, against the second party. It will be open, however, to the learned City Magistrate to initiate fresh proceedings u/s 107, Criminal P.C., if it may at any time appear to him that there is a danger of the breach of peace".

With great respect I differ from the view taken by the learned Judge. If that were the correct position in few, then in all cases where because of long pendency of any appeal or revision the period initially fixed by the Magistrate for keeping the peace had expired, the proceeding taken u/s 107 Cr. P. C. will automatically fail. In most cases it will be difficult to dispose of an appeal from the order u/s 118 Cr. P. C. and revision, if any from the appellate order, during the period fixed by the Magistrate for keeping the peace. If that were so, it will be easy for the persons bent upon disturbing the peace to destroy the effect of such proceeding by adoption of delaying tactics. The entire argument is fallacious and /unreasonable to the extreme in that the very act of the persons bent upon committing the breach of the peace is used in their favour as a ground for quashing the entire proceeding. It is difficult to countenance such a course of conduct. If it were so, no proceeding u/s 107 will have a successful termination, because by causing deliberate delay and by taking an appeal from the order and hampering its expeditious disposal on some frivolous grounds or other the order of the Magistrate may be rendered easily infructuous, because of the expiration in the meantime of the period for keeping the peace or maintaining good behaviour, as the case may be, before the disposal of the connected appear or the revision. This contention is therefore supportable neither on principle nor on grounds of expediency. I am, therefore, unable to accept this contention. The proper course in such cases is that the period during which the petitioners were to keep the peace or maintain good behaviour, as the case may be should be made operative from the date fixed by the appellate or revisional authority. I would, therefore, Overrule this contention.

The third contention of Mr. Imam and a substantial one is that the case of each individual petitioner has not been considered. That is quite true. Neither the teamed Magistrate nor the learned Additional Sessions Judge have anywhere in their judgments dealt with the cases of individual petitioners and summarised the evidence against each. As laid down in the case of Sajan Sahu and Others Vs. Emperor, where in the proceedings u/s 107 the cases of individual persons have not been separately considered and the evidence against each person has not been summarised, the order u/s 107 cannot be sustained and must be set aside. On this ground, therefore the order of the learned Magistrate u/s 118 must be set aside. This, however, does not mean that the proceeding taken against the petitioners absolutely fails, and at one time I thought of remanding the case for disposal in accordance with law. But such a long period has not elapsed since after the order was made by the Magisrate that such a course in this particular case will not be advisable. I would therefore quash the order passed by the learned Magistrate on 20-3-56. If, however, he considers that the danger of the breach of the peace continues and the petitioners are not likely to desist from action calculated to commit the breach of the peace or disturb the public tranquillity or from doing any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of the opinion that there is sufficient ground for a proceeding, he will be at liberty to initiate fresh proceedings u/s 107 Cr. P. C.

The application is accordingly allowed, and subject to the observations aforesaid the order of the learned Magistrate dated 20-3-56 is set aside and the proceeding is quashed.