Kirpal Singh vs The State of Himachal Pradesh

Chet Ram Thakur, J.—These two criminal revisions arise out of the same proceedings initiated by Nirmal Chand under Sections 107/151 of the Code of Criminal Procedure, 1973 (shortly called the code) and will, therefore, be disposed of together.

By the revision petition No. 48 of 1975 the Petitioner has challenged the validity of order dated 19-8-1975 passed by the Magistrate 1st Class, Dharamsala. The order is to the following effect:

Kirpal Singh Respondent present in police custody. The Respondent to furnish bail bond for appearance in the sum of Rs. 1,00,000/- with two sureties in the amount of Rs. 50,000/-/ Rs. 50,000/- otherwise remanded to judicial custody and to be produced on 30-8-1975 in Court. The file to be put up for further proceedings on that date.

By the criminal revision petition No. 47 of 1975 he has challenged the order dated 30-8-1975 purported to have been passed u/s 116(3) of the Code directing the Respondent to execute a bond in the sum of Rs. 20,000/- with two sureties in the like amount each for keeping the peace until the conclusion of the inquiry.

The facts briefly are that on 19-8-1975, Nirmal Chand of Sham Nagar in Dharamsala reported to the police that he along with his friend Kuldip took their lunch at the hotel of Kirpal Singh in Kotwali Bazar, Dharamsala. Kirpal Singh served them with rotten food and charged exorbitant price. Nirmal Chand asked him as to why he had charged such an exorbitant price, on which he got enraged and threatened him and his friend with dire consequences. The police went at the spot. From the order it appears that when the police reached the spot the Respondent attempted to make an attack on Nirmal Singh. In view of the fact that there existed imminent danger of breach of peace at the hands of Kirpal Singh the police arrested him and produced him in the Court for proceeding u/s 107 of the Code.

First, I will take the order impugned by revision petition No. 48 of 1975. By this order the learned Magistrate called upon the Petitioner to execute bail bonds in the sum of Rs. 1,00,000/- with two sureties in the amount of Rs. 50,000/- each. The submission made by the learned Counsel for the Petitioner is that the Magistrate had no jurisdiction to ask the Petitioner to furnish bail for his appearance in the Court and for this submission of his support is sought to be drawn from Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others,

Section 107 speaks that the procedure to be followed is one as laid therein, i.e. in Chapter VIII. Section 111 provides that when a Magistrate acting u/s 107, Section 108, Section 109 or Section 110 deems it necessary to require any person to show cause under such section, he shall 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 to be in force, and the number, character and class of sureties (if any) required. Section 112 provides that if the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him. Section 113 provides that if such person is not present in court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court: Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the place cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest. Section 114 says that every summons or warrant issued u/s 113 shall be accompanied by a copy of the order made u/s 111, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same. Section 115 says that the Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader. Therefore, it would appear that the procedure provided under this Chapter is quite comprehensive and there does not appear to be any power to the Magistrate to pass any order calling upon the person complained against to furnish bail for his appearance in the Court. The authority Madhu Limaye''s case (supra) relied upon by the learned Counsel for the Petitioner says that there is no room for invocation of other provisions of the Code such as S. 55 or 91. In some of the cases of the High Courts, to which reference is not necessary, recourse has been taken to these provisions in aid of Chapter VIII. Apart from the fact that S. 55 deals with special cases of arrest and cannot be made applicable S. 107 itself speaks that the procedure of Chapter VIII should be followed, where Sections 112, 113 and 114 of the Code prescribe their own procedures. Similarly, S. 91 may be applicable till the order u/s 112 is drawn up. After it is drawn up the Magistrate has to act under Sections 113 and 117(1). Then there is no room for Section 91. Further, it has been observed: "There is also no question of bail to the person because if instead of an interim bond, bail for appearance was admissible Chapter VIII would undoubtedly have said so. Further bail is only for the continued appearance of a person and not to prevent him from committing certain acts. To release a person being proceeded against under Sections 107/112 of the Code is to frustrate the very purpose of the proceedings unless his good behaviour is ensured by taking a bond in that behalf". In this case the Petitioner had been arrested by the police and was produced before the Magistrate, therefore, the provisions of Section 91 could not be made applicable as he was already in the custody of the police at the time when the order contemplated to have been passed u/s 111 of the present Code was passed. Therefore, there is nothing in Chapter VIII authorising the Magistrate to call upon a person to furnish bail bond for his appearance and as such this order is manifestly wrong and without jurisdiction. Similarly, it has been so held in Dhaneshwar Mallah and Others Vs. The State of Bihar, relying on the observations made in paragraphs 48 and 49 of the judgment in Madhu Limaye''s case, referred to above. Therefore, this order is liable to be quashed as being without jurisdiction.

Now, I come to the criminal revision petition No. 47 of 1975. This order was passed in the same proceedings on which the order attacked under criminal revision petition No. 48 of 1975 was made. This order was made on 30-8-1975. From the order it would appear that the notice as contemplated u/s 111 of the Code was read over and explained to Kirpal Singh, who denied the allegations and declined to furnish the requisite bond with requisite sureties. The Magistrate thereafter proceeded to pass the following order:

From the case file and the report of the police I consider that in this case immediate measures are necessary for the prevention of a breach of peace as the Respondent has been found to have threatened the bona fide customers who went to take lunch at his hotel, the Respondent not only insulted the complainant but also held out threats to them in the presence of the police and in circumstances, I think it is a fit case to invoke the provisions of Section 116(3) Code of Criminal Procedure and accordingly I direct the Respondent to execute a bond in the sum of Rs. 20,000/- with two sureties of the like amount each for keeping the peace until the conclusion of the inquiry, and the Respondent be detained in custody until such bond is executed or, in default of execution, until the inquiry is concluded.

Learned Counsel for the Petitioner contends that there was no material before the learned Magistrate to come to the conclusion that immediate measures were necessary for the prevention of a breach of the peace or disturbance of the public tranquillity. He was only guided by the police report for making an order as contemplated u/s 116(3) of the Code. This, according to him, must be a fact of definite character. There was only a petition and a report by the police and which could not be said to be a sufficient material and, therefore, this order was absolutely without jurisdiction. Learned Advocate-General contends that the petition and the police report were sufficient on the basis of which the Magistrate could come to the conclusion that immediate measures were necessary. But, I am of the view that this submission made by the learned Advocate-General is not correct. The section itself is quite clear and it says that the Magistrate has to record reasons in writing for coming to the conclusion that immediate measures are necessary for the prevention of a breach of peace which presupposes that he must make some inquiry. In this behalf it would be pertinent to refer to paras 42, 43 and 44 of the judgment in Madhu Limaye''s case (supra). The pertinent observation which may be relevant for the present case is made in para 43 as:

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. In Nafar Chandra Pal Chowdhury Vs. Emperor, there was only a petition and a report and these were not found sufficient material some inquiry has to be made before the bond can be ordered. We therefore, approve of these cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond on placing the person in custody in default This 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, on the basis of this authority it can be said that the order made by the learned Magistrate without any enquiry, merely making the police report as the basis, is wholly wrong and without jurisdiction and this order, therefore, is not sustainable. Consequently this order also must be quashed.

The net result is that both these revision petitions are allowed and both these orders challenged by these petitions are set aside. The case shall go back to the learned Magistrate to proceed in accordance with law if the circumstances of the case so permit.