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Rameshwar Harijan vs State of Bihar and Others

Patna High Court · Decided on 28 June 1983 · Citation: (1984) 32 BLJR 46

HON’BLE JUDGES
Anand Prasad Sinha, J
ACTS & SECTIONS REFERRED
Criminal Procedure Code, 1973 (CrPC) — Section 107, 111
RESULT
Allowed
CASE NUMBER
Criminal Miscellaneous No. 2003 of 1982
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Judgment

7 paragraphs · 388 words

Anand Prasad Sinha, J.—This application is directed against the order dated 29.9.1981 passed incase No. 607 of 1981 by which a proceeding u/s 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been drawn.

2.

It appears that opposite party No. 2 had filed two applications for starting a proceeding u/s 107 of the Code. The matter had been referred to the police and on the basis of the report of the police, the proceeding had been drawn.

3.

Learned Counsel appealing on behalf of the petitioner has submitted that the substance of accusation has not been mentioned while drawing the proceeding and also that there is no specific mention of the fact regarding satisfaction of the learned Magistrate for an apprehension of the breach of the peace and that being so, the proceeding is not maintainable. I find sufficient force in these contentions.

4.

It will appear that the learned Magistrate has drawn the proceeding u/s 107 of the Code by simply stating the fact that the enquiry report has been received and that being so, the proceeding is drawn. In that order absolutely there is no mention of the substance of accusation whatsoever. It appears that in continuation of that order, after drawing the proceeding, he has further mentioned regarding the petition Sled by opposite party No. 2 and thereafter he has observed that the petitioner and opposite party No. 2 have some quarrel in between them regarding some land dispute.

5.

When the proceeding had already been drawn, as stated above, and there was absolutely no mention whatsoever regarding the element of accusation, any further improvement or addition of such fact shall not cure the legal lacuna in the sense that there is no sufficient compliance of Section 111 of the Code.

6.

Further, it will appear that not a single word has been mentioned that the learned Magistrate felt satisfied regarding the existence of the apprehension of the breach of the peace and, in my opinion, that is a condition precedent for initiating a proceeding u/s 107 of the Code and if that element is absenting, the proceeding cannot be said to be in accordance with law.

7.

In the result, the application is allowed. The impugned order initiating the proceeding u/s 107 of the Code is hereby quashed.