K. Krishnan Nair vs State of Kerala

Subramonian Poti, J.—In these cases which came up before me at a time when the strike of the Kerala State Electricity Board Employees was on I thought I would pass only interim orders to protect the Petitioner lest any observation of the court called for at final disposal may embarrass the Board or the government in meeting the situation arising out of the strike. But now that the tension has eased it would be appropriate to consider the case here in an objective background.

Action u/s 107 of the Code of Criminal Procedure was resorted to by the Police against an Assistant Engineer of the Kerala State Electricity Board. He happened to be the Vice President of the Kerala State Electricity Board Workers'' Association. Naturally he must have been interested in the strike and the object of taking Section 107 proceedings against him was to dissuade him from carrying on such activities. In the report by the police to the Sub Divisional Magistrate (Executive) it was mentioned that if the Petitioner was allowed to be free he would carry on his activities vigorously, that he will give a call for such activities, and pursue it with all force. It is said that there has been destruction of public property by those engaged in the strike and the Petitioner as an active Vice President of the Association would contribute to the activities of the workers. On this plea the Sub Divisional Magistrate was approached to take action u/s 107 of the Code of Criminal Procedure. That section contemplates an order requiring any person to show cause why he should not be ordered to execute a bond for keeping the peace for such period, not exceeding one year as the Magistrate thinks fit in case the Executive Magistrate receives information 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 he is of opinion that there is sufficient ground for proceeding. The procedure to be followed is laid down in Sections 111 - 116 of the Code. The Executive Magistrate is to make an order in writing setting forth the substance of information received by him, 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. Summons has to issue to a person not in custody. If he is in police custody a warrant has to be issued to the officer having custody of such person to produce him in court. The persons concerned may appear pursuant to the summons or they may be produced pursuant to the warrant as the case may be. When they so appear the Magistrate has to act u/s 116 of the Code. He may proceed to inquire into the truth of the information upon which action has been taken and take further evidence if necessary. If finally the Magistrate decides, on the evidence taken by him and the inquiry made by him as to the truth of the information, that there are circumstances warranting action by way of calling for execution of a bond to keep the peace he may direct the party to execute an appropriate bond. If he considers that an interim bond to be operative till the matter is finally decided is necessary he can direct the execution of such bond. He can remand a person to custody only if despite such order to execute interim bond that is not so executed. It goes without saying that there is no power in an Executive Magistrate to remand a person to custody as soon as such person appears before him pursuant to summons issued or is produced before him by the police pursuant to warrant issued to produce a person in custody. That can be done only after an order for execution of interim bond is passed and the person concerned does not execute such a bond.

It has to be emphasised that the direction to execute an interim bond is not to be made as a matter of course. It has to be only for very good reasons, reasons which appeal to the Magistrate on the basis of material information brought to his notice. The satisfaction that he has to reach at that stage is an objective satisfaction reflected in his order for direction to execute the interim bond. This is indicated by the words of Sub-section (3) which run thus:

116(3): After the commencement, and before the completion, of the inquiry under Sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order u/s 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution until the inquiry is concluded

Provided that

(a) No person against whom proceedings are not being taken u/s 108, Section 109 or Section 110 shall be directed to execute a bond for maintaining good behaviour;

(b) The conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order u/s 111.

The reasons must be recorded in writing and the indication of the matters to be taken note of by him at that stage is to be found in the sub-section itself. It is my experience that Executive Magistrates are quite often content with making ritualistic recitals without applying their minds. The words "for the prevention of breach of the peace or disturbance to the public tranquillity" in Sub-section (3) of Section 116 of the Code are usually found recited in interim orders. That would not be sufficient. It is one thing to say that the Magistrate considers it necessary that for prevention of the breach of the peace or disturbance to the public tranquillity or commission of any offence or for the public safety that a person in respect of whom order u/s 111 has been made is to execute a bond and another thing to state reasons in writing. Reasons are different from conclusions and what are required to be stated are the reasons. The process by which the conclusions is reached is the reason and that calls for categorical statement. While satisfaction that prevention of breach of the peace is likely may be the inference or conclusion drawn from the circumstances the reason for reaching that conclusion is the logical process by which, based on the materials available the conclusion reached.

It is well to remember that Section 116 gives very wide powers to an Executive Magistrate, powers to call upon any citizen to execute a bond failing which he will have to be in the custody of the police and necessarily the vastness of the powers calls for strict observance of the conditions subject to which such power is to be exercised. Therefore when a Magistrate does not act strictly in accordance with the provisions of Section 116(3) the consequence would be that the freedom of a citizen is unlawfully interfered with and there is a case of illegal detention. Naturally therefore it is necessary that the Executive Magistrates exercising their power u/s 116(3) should bear in mind the restrictions subject to which they should exercise their power to pass an order to execute an interim bond.

In any case to which attention of this Court is drawn in appropriate proceedings that a person has been served with an order which is not justifiable u/s 116(3) of the Code this Court would not hesitate to interfere.

In the case before me I see no justification for the action taken by the Executive Sub Divisional Magistrate, Fort Cochin. Both the petitions are by the same person. An Assistant Engineer of the Kerala State Electricity Board was produced before the Sub Divisional Magistrate, Fort Cochin and instead of calling upon him to execute an interim bail bond, the learned Sub Divisional Magistrate directed issue of notice to the Public Prosecutor to be present on a subsequent date and remanded the Petitioner to the Sub Jail for custody till that date. This is patently illegal. He has no power to order such remand. His power is limited to directing execution of an interim bond if found necessary and nothing more. There was no such order then for executing an interim bond. If so there was no reason to remand him to custody. This matter was taken to this Court and by an interim order this Court directed release of the Petitioner. That was on 5th June 1978. It was subsequent to this that the learned Magistrate passed the order directing him to execute an interim bond as envisaged u/s 116 of the CPC for Rs. 8,000 with two solvent sureties each for a like sum. The Petitioner has again come upto this Court with Crl. R.P. No. 210 of 1978.

In directing the execution of an interim bond the executive Magistrate might have felt that he could proceed with the case and pass such order for execution of interim bond which he failed to do earlier and which he ought to have done. But that order too is bad. The order, as I said, does not refer to the requirements which alone would justify a valid order. There are usual ritualistic recitals that the Magistrate was satisfied that in the interest of the peace and tranquillity in the area and as there was apprehension of breach of peace, the Respondent was to be directed to execute an interim bond. This is the usual preamble.

Apart from the absence of statement of reasons there are other infirmities also in the order of the Executive Magistrate. There is mention of apprehension of the breach of the peace. I called upon the Government counsel to show me any statement or report by police which would at least indicate apprehension of breach of the peace. Breach of the peace quite often occurs when there are two conflicting sides. When some persons indulge in illegal activities that will not, by itself, amount to breach of the peace. What the learned Magistrate means by breach of the peace is not evident. There was no reason for such apprehension on the materials before the learned Magistrate.

Section 116(3) enables the Magistrate to exercise power to call for an interim bond only if the Magistrate considers that immediate measures are necessary for prevention of breach of the peace or disturbance of the public tranquillity or the commission of any offence or public safety. The interim order here does not refer to public safety or commission of any offence. The satisfaction referred to therein is linked to ''interest of the peace and tranquillity'' which are not elements contemplated in Sub-section (3) of Section 116. Asking a person to act in a particular manner to prevent breach of the peace and asking him to act in that manner in the interest of peace, are different. Similarly prevention of disturbance of public tranquillity is not the same thing as ''interest of tranquillity''. Therefore even in using the expressions -- of course without applying the mind -- the learned Magistrate has not respected the requirements of Section 116(3) of the Code. In this view also the order is bad. The orders challenged in these petitions are hence quashed.