Perumal and Others vs The State

1.This petition has been filed to set aside the order passed by the Sub-Divisional Magistrate and Revenue Divisional Officer, Aruppukkottai, u/s

116(3), Cr.P.C. calling upon the petitioners to execute an interim bond till the disposal of the proceedings in M.C. No. 55 of 1984 on his file. The

said order was challenged mainly on the ground that the learned Magistrate, without making any enquiry into the truth of the information and

without commencing the enquiry, has passed the said order and it is illegal. The learned counsel also relied on the decision of the Supreme Court

reported in Madhu Limaye and Another Vs. Ved Murti and Others, which runs as follows (paras 15 and 16)

It appears that the Magistrate used the powers u/s 117(3) without commencing to enquire into the truth of the information. No sworn statement of

any kind was obtained by him and he adjourned the cases for the examination of the petitioners without summoning the witnesses in support of the

information. He however, asked the petitioners to furnish an interim bond or go to jail.

It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order

to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Cr.P.C. The Magistrate

could ask for an interim bond only if he could not complete the enquiry, and ''during the completion of the enquiry'' postulates commencement of

the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and

hear nobody and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a

statement from Brij Mohan or Yed Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. Therefore, the

proceedings for asking for an interim bond were completely illegal"".

Relying on the above decision of the Supreme Court in Thenmalaiyandi v. State 1983 MLW (Cri) 313 : 1984 Cri LJ 1079 S. Natarajan, J., held

thus (At p. 1081) :

The Second illegality is that the Magistrate while passing the preliminary order, has called upon the counter petitioner to execute interim bonds

each in a sum of Rs. 1,000/- with two sureties each in like sum. The Supreme Court has clearly held in Madhu Limaye and Another Vs. Ved Murti

and Others, that before an order for execution of interim bond is passed, the enquiry must have commenced and there must be prima facie material

before the Magistrate to justify an order being passed for execution of interim bonds pending completion of enquiry. In this case, even before the

enquiry has started, the Magistrate has passed the order for execution of interim bonds and this is patently against law. Hence, on these two

grounds alone, the order deserves to be quashed.

In the instant case, the parties appeared before the Magistrate on 5-4-1984 in pursuance of the Criminal notice served on them and the matter

was adjourned to 16-4-1984. In the meanwhile, on the receipt of the report from the police, the learned Magistrate straightway passed an order

u/s 116(3), of Cr.P.C. directing the petitioners herein to execute the interim bond. It is significant to note that neither the details of the bond nor the

period was mentioned. The learned Magistrate has also not applied his mind or held any enquiry on receipt of the report from the police. Nor any

opportunity was given to the petitioners to put forth their contentions. As laid down by the Supreme Court and also by this Court in the decisions

cited above, the impugned order passed by the Sub-Divisional Judicial Magistrate is clearly illegal and liable to be quashed.

In the result, the order passed by the Sub-Divisional Magistrate, Aruppukkottai, calling upon the petitioners under S. 116(3) Cr.P.C. to execute

the interim bond is hereby set aside and this petition is allowed.

Petition allowed.