Kailash Singh and Others vs The State of Bihar

Anand Prasad Sinha, J

This application is for quashing of a proceeding u/s 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) in case No. 675 of 1982 pending in the court of the Sub-divisional Magistrate, Aurangabad. The proceeding was initiated on the basis of a police report. The police report has been annexed to this application and marked as annexure-3. It has been stated in it, that on account of murder of Mukhiya, Sinha Nath Singh, the petitioners and some others, who have been made the second party in the said proceeding, are quarrelling among themselves and they are planning for some major offence and that being so there is an apprehension of breach of the peace.

The learned Magistrate, on the basis of the police report mentioned above, has drawn the proceeding and has noticed for showing cause as to why the petitioners be not asked to execute a bond for Rs. 20,000/-(Twenty thousand) with two sureti of the like amount each for a period of one year. From the perusal of the order of the learned trying Magistrate dated 7.6.1982, it will appear that practically he has copied out the words and sentences of the police report and further he has stated that on being satisfied of the police report, the proceeding is being drawn. In pursuance of the order dated 7.6.1982 passed by the learned Magistrate, notices have been issued to the parties, a copy of which has been annexed and marked as annexure-2 to this application It appears that the notice is a cyclostyled one and in the blank space left the following endorsement has been made, which appears to be substance of accusation probably. It runs as follows:-

Sidhnath Singh Mukhia ke hatya ke bad vipakshigan partham paksh se jhanjhat kar rahe hain tatha khoon kharabi karne ka rachna rach rahe hain Jisse Shanti bhang hone ki sambhawna hai

It has been submitted on behalf of the petitioners that there is no cause what-so-ever for starting the proceeding and also the proceeding is bad in law because substance of accusation has not beer mentioned in the notice and also the amount of the bond fixing at Rs. 20,000/- is so excessive that it has rendered the whole proceeding bad in law.

First, I will take the first part of the submission. I have no hesitation in saying that the substance of accusation, as it deserves to be, enabling the petitioners to file an effective show cause and contest the same, has not been mentioned.

As a matter of fact, from the accusations, no material has been brought in, necessitating a proceeding u/s 107 of the Code in law because the accusation, utmost mention only an ill feeling and tension in between the parties. No overt act what-so-ever has been attributed and as a matter of fact, from the perusal of the police report which is annexure-3 to this application, it appears that, no overt act so far had been committed by the petitioners or any of the petitioner what so ever.

In addition to the two infirmities pointed out above one vital aspect for consideration is as to whether the learned Magistrate is permitted in law to simply transplant the statement made by the police or carry the same statements through a conduit pipe and just adopt it as the order for initiation of the proceeding.

Section 107 of the Code reads as follows:--

Security for keeping the peace in other cases.--(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner her (sic)inafter provided, require such person to show cause what 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.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.

Two important conditions appears to be for initiation of the proceeding u/s 10/ of the C de and they are "(i) is of opinion" and another "(ii) there is sufficient ground for proceeding."

Therefore, it becomes necessary for the Court, before whom the matter for the initiation of the proceeding is pending to apply its mind and it should not be that the order is passed as a matter of course. The court should not pass the order as a necessary formality for the mere asking. Law warrants that he has to be satisfied on the materials placed before him that there is an occasion for proceeding, in the case of the learned Magistrate apart from the report submitted by the police or any other information placed before the court. It does not contemplate the drawing up of proceedings automatically.

That being so, in the facts of the instant case, as stated above, it will appear that the learned Magistrate has simply adopted the police report to be his order and that will indicate that he has not exercised his discretion after application of mind and after due consideration that there was sufficient ground for proceeding. This will further indicate that he has not formed the opinion in-dependent of the fact of mere asking by the police for the proceeding.

In my opinion, this is not permissible in law and the impugned order suffers from this infirmity also.

Now coming to the second submission regarding the excessive amount of the bond fixed by the learned Magistrate, sub-clause (b) of section 117 of the Code may be referred to which reads thus :--

(b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive.

It is well settled that a proceeding u/s 107 of the Code is not punitive but it is preventive. The object is not to punish a person and send him to jail. It is also not to augment the funds of the State exchequer. Moreover, the learned Magistrate, while functioning as a court adjudicating a matter relating to a proceeding u/s 107 of the Code, is a court discharging judicial function and that being to he has to function within the limits of justice, eqaity and good conscience. That being so, this power of fixing an amount of bond must be held under legal restraint audit should not be such which may reflect an order indicating abuse of process of the court. Further, the provision, quoted above, puts a limit that no excess should be committed while implementing the law. This order has to travel within the local limits of reasonableness.

The effect of imposing such an excessive amount as the amount of the Bond is apparent that the petitioners are to go to jail and that is the reasonable inference while fixing the quantum of the amount involved in the instant case. The probability, is that the petitioners shall not be able to execute the bond and perhaps, that probability must be also a only probability and a probability occurring in the mind of the learned Magistrate also.

In addition to the discussions made regarding this issue, such imposition of excessive amount will, further indicate that the learned Magistrate hat not applied his mind while initiating the proceeding and as discussed above, in my opinion that will also render the proceeding bad in law.

Therefore, on the basis of the discussions made above, the instant proceeding is fit to be quashed. In the result the application is allowed and the proceeding is hereby quashed.