Nirmal Kumar Ghosh vs State of Bihar and Another

S.K. Chattopadhyaya, J.—Heard Mr. Chandra for the petitioner, Mr. Anil Kumar for opposite party No. 2 and Mr. Dubey on behalf of the State.

The petitioner has impugned the very initiation of the proceeding u/s 107 of the Code of Criminal Procedure (shortly Cr.P.C. ) against him on the ground that when the police report does not show any overt act by the petitioner, the proceeding could not have been initiated.

The facts of the case lie in a narrow compass: At the instance of opposite party No. 2 the police submitted a report requesting the Magistrate for drawing up a proceeding u/s 107 Cr.P.C. From the police report, as contained in Annexure 2, it appears that according to the opposite party No. 2-Ist party, the petitioner-2nd party was his tenant in respect of a rented house. Whenever the petitioner was asked to pay rent, he refused to pay the same and on being asked to vacate the premises, he was always bent upon to assault. The statement of the petitioner before the police was that he was tenant under one Bhajan Singh Bhowra who resides in foreign country. The said premises was being looked after by one Darshan Singh Bhowra. In 1991 when his water and electricity connection were disconnected, he got it restored through Court in HRC case No. 25/91 and 35/91. He also stated that he deposited rent per month in the Court. His allegation was that opposite party No. 2 always insisted on him to vacate the premises and for that he used to harass him. The police, on enquiry, found that the petitioner is residing as tenant with his sister in the house concerned. The second party-petitioner wants to grab the house as because its owner is residing in foreign country. The first party-opposite party No. 2 purchased the said house in January, 1997 from Bhajan Singh Bhowrah and resides in the said house with his family member. As the condition of the house has become deteriorated, it requires repair. It was also found that the petitioner always files applications even though electric and water connections have not been disconnected. In this background the police was of the view that there was tension between the parties and, as such, requested the Magistrate to issue notice u/s 107 Cr.P.C. So that peace may be maintained.

This report was submitted by the police on 17.7.97 and on that date the learned Magistrate stayed the proceedings u/s 107 Cr.P.C. taking into consideration the fact that the petitioner-tenant has been depositing rent in the treasury and also that a case is going on the question of ownership of the disputed house. The matter was adjourned to 21.7.97 and on 14.8.97, after hearing parties, the learned Magistrate directed the parties to appears, before him on 28.8.97 to file their show causes as to why they should not execute a bond of Rs. 3000/- for maintaining peace. This order of was impugned by the petitioner before the third Addl. Sessions Judge, Jamshedpur in Cr. Revision No. 104/97 but without any success.

Mr. Anil Kumar has raised a preliminary objection regarding maintainability of this application u/s 482 Cr.P.C. by submitting that the instant application is not maintainable as it is the garb of second revision. On merits, learned Counsel submitted that when the police report indicates that there was chance of apprehension of breach of peace, issuance of notice by the Magistrate to both the parties cannot be said to be illegal.

Learned Counsel for the petitioner, however, strongly contended that if this Court finds that, on the facts and circumstances, the initiation of the proceeding was bad in law, it can exercise its power u/s 482 Cr.P.C. irrespective of the fact that the revision filed by the petitioner was dismissed by the Court below. On merits it has argued that the proceeding under this Section cannot be initiated unless it is absolutely necessary to prevent any immediate breach of peace. In support of his contention learned Counsel has relied on a decision in the case of Kuldip Singh Chawla v. State of Bihar and Ors. reported in 1988 BLT. 325 and in the case of Md. Saquib Ahsan and Ors. v. State of Bihar reported in .

Though in the case of Deepti alias Arati Rai Vs. Akhil Rai and Others, , their lordships have held that second revision, after dismissal of first one by the Sessions Court is not maintainable and that inherent power u/s 482 Cr.P.C. cannot be utilised for exercising powers which are expressly barred by the Code, but subsequently in the case of Krishnan and another Vs. Krishnaveni and another, their lordships observed that though second revision before the High Court in Sub-section (1) of Section 397 of the Code is prohibited by Sub-section (3) thereof, inherent power of the High Court is still available u/s 482 of the Code and as it has paramount power of continuous superintendence u/s 482 Cr.P.C. the High Court is justified in interfering with the order leading to miscarriage of justice and set aside the order of the Courts below.

Thus, it is clear that if the High Court finds that to prevent miscarriage of justice the impugned order should be interfered with, it can exercise its power u/s 482 Cr.P.C. irrespective of the bar of second revision as contemplated in the Code. I, therefore, hold that in the facts and circumstances, this application is maintainable.

Under what circumstances the proceedings u/s 107 Cr.P.C. can be drawn by the Magistrate, has been laid down by this Court in the case of Kuldeep Singh Chawla (supra). This Court has held "it is the fundamental requirement of law that there must be some material to show that the petitioner had committed any overt act or any wrong, so that reasonable apprehension of breach of peace can be prevented at the instance of any of the petitioners and for that purpose specific overt act must be assigned against each individual person who is proceeded against u/s 107 Cr.P.C. and if it is not done, drawing up a proceeding against that person for want of specific overt act or wrong done, cannot be sustained in law."

Recently in the case of Md. Saquib Ahsan (supra) this Court has noticed that the proceeding under chapter VIII of the Code, particularly proceeding u/s 107 Cr.P.C. are conducted by the Magistrate in a most lethargically manner causing harassment to the public for no fault. It was held the Magistrate, therefore, exercising powers u/s 107 Cr.P.C. or Section 116 Cr.P.C. must apply their minds and must record the substance of accusation and substance, of information in its order initiating the proceedings under the aforesaid sections.

In this background, if the police report and the order of the Magistrate are considered, it will appear that there is a dispute over the disputed property and a case is pending before a Court of law regarding its ownership. The Magistrate, on 17.7.97, was satisfied with the fact that the petitioner being a tenant was depositing rent in the treasury and a case was pending regarding ownership of the property. Being satisfied he stayed the proceeding u/s 107 Cr.P.C. awaiting the report of the police. The police report no where reveals that the petitioner has taken the law in his own hand and committed any overt act which may lead to breach of peace. In this circumstance, in my view, the Magistrate has failed to exercise his jurisdiction vested in him under law by initiating the proceeding and issuing notice to the parties.

The opposite party No. 2, if really aggrieved, can approach the Court below where the suit is pending between the parties and under this situation the initiation of the proceeding will only amount to miscarriage of justice.

In the result, this application is allowed and the entire proceeding initiated u/s 107 Cr.P.C. including the order dated 14.8.97 are herebu auashed.