Rang Lal Mahto and Others vs State of Bihar

Hari Lal Agrawal, J.—This application in revision has been filed by the members of the second party in a proceeding u/s 107 of the Code of Criminal Procedure, 1973 and is directed against the final order passed by the Executive Magistrate, Sasaram dated 21-4-1976. By this order the learned Executive Magistrate held that serious troubles existed between the parties who were at daggers drawn with each other and there was every likelihood of breach of the peace between them. Accordingly, he ordered to all the nine members of the second party, namely, the petitioners to execute bonds of Rs. 2,000/- each with two sureties of the like amount each u/s 107 of the code for keeping the peace for a period of twelve months.

An appeal was taken by the petitioners against the said order but the learned 3rd Additional Sessions Judge, Arrah, by his order dated 17-9-1976 dismissed the same. The petitioners have, accordingly, come to this court in revision.

I may now state the relevant facts in brief. The learned Sub-Divisional Magistrate drew up the proceeding u/s 107 of the Code of Criminal Procedure on the basis of a police report on 6-9-1975 and directed both the parties to show cause as to why they should not be called upon to execute bonds of Rs. 2,000/-for a period of one year for keeping the peace. Cause was shown by the petitioners and, thereafter, the case was transferred to the court of an Executive Magistrate, where three witnesses were examined on behalf of the first party, who closed their case on 28-3-1976. He then directed the petitioners to produce their witnesses from the next day. The petitioners'' case is that in the short time that was allowed to them they could not produce any witness. The learned Executive Magistrate, therefore, on the basis of evidence adduced on behalf of the members of the first party, passed the final order on 21-4-1976 as already indicated above.

Three questions were raised by the learned advocate appearing for the petitioners for our consideration-

(1) The order does not consider the individual cases of the petitioners, (2) the Executive Magistrate u/s 107 of the new Code could not ask the petitioners to execute bonds in question with sureties and (3) there had been non-compliance of the provisions of Section 313 of the new Code corresponding to Section 342 of the old Code and thereby great prejudice has been caused to them.

In the police report it was alleged that tension was existing between the parties on account of the tendency of various criminal cases. All the petitioners are said to belong to one group. It was, therefore, not a case where any specific overt act could be alleged against each one of them separately. The allegations were of a general nature, that is, rivalry and tension. I do not, therefore, think that on the facts of this case, the learned Executive Magistrate was called upon to consider any individual case of the petitioners separately. As the allegations were of a general nature and the evidence adduced on behalf of the first party being that apprehension of breach of the peace exist between the parties, the learned Magistrate was certainly right in passing an order u/s 107. The second and third points urged on behalf of the petitioners, however, are of some substance and have to be considered in some detail.

There seems to be a change in the provision of Section 107 as it existed in the old Code and as it exists now under the new Code. Under the old provisions, the Magistrate was authorised if he was satisfied that ground for proceeding under this provision was there to call upon the person concerned to show cause "why he should not be ordered to execute a bond with or without sureties for keeping the peace...." "Under the new section power to issue show cause" as to "why he should not be ordered to execute a bond for keeping the peace.'''' Is there but the provision "with or without sureties" has been omitted. The other provisions following under this chapter, namely, Chapter VIII is Section 108 which empowers a Judicial Magistrate of first class to take security for good behavior and the other provisions namely Sections 109 and 110 which deal with the security provisions in different circumstances authorise a Judicial Magistrate to call upon the person concerned to execute a bond, with or without sureties, for his good behavior. Section 177 under which the final order has to be passed under any of the provisions falling under Chapter VIII had necessarily to contain a provision empowering the Magistrate to call upon to execute a bond with or without sureties as this is the provision under which orders for maintaining the peace has to be passed under all the provisions falling under Sections 107 to 110 of the new Code. The learned Executive Magistrate therefore, seems to have overlooked this change in the law and has passed the order asking the petitioners to execute the security bonds with sureties by inadvertence. It is obvious that this part of the order could not be made by him and the only order that could be passed under the new provision was an order to the petitioners to execute bonds themselves (without any sureties). The order to this extent is certainly bad but for this reason, however, J do not feel it necessary to set aside the whole order, as ends of justice can be met if the order is modified and the petitioners are relieved from the obligations of executing the bonds in question, with sureties.

The third contention is based upon the explanation to Section 273 of the new Code. Section 273 corresponds to Section 353 of the old Code, but the explanation was not in the old Code, has been added in the new code to Section 273. Section 273 deals with the mode of taking and recording evidence in any enquiry and trial. It provides that all evidence taken in course of the trial or other proceeding shall be taken in the presence of the" accused, or when his personal attendance in dispensed with, in the presence of his Pleader. By the explanation it has been provided that the expression" accused" in this section will also include a person in relation to whom any proceeding under Chapter VIII has been commenced in this Code. It is, therefore, apparent that the person in relation to whom a proceeding u/s 107 of the Code which falls under Chapter VIII thereof has been commenced would also "be deemed to be an accused" for the purpose of Section 273 and like the procedure followed in case of trials, all evidence in the proceeding has got to be taken in the like manner in presence of the said person.

This brings us for consideration of the provisions contained in Section 313 (corresponding to 342 of the old Code). Section 313 requires that for the purposes of enabling the accused personally to explain the circumstances appearing in the evidence against him in every enquiry or trial, the court shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case: Provided that in a summons-case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).Sub-section (2) of Section 116 of the Code lays down that the enquiry under Chapter VIII shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons-cases. Clause (b) of Section 313(1), which has just been noticed, enjoins a duty upon the court to question an accused generally on the case immediately after the witnesses for the prosecution have been examined and before he is called on for his defence. In view of the procedure in summons-cases, as it does not require for calling upon the accused for his defence, as in the sessions and warrant cases, but only for hearing the accused, there are divergent decisions of various High Courts as to the application of Section 313 to summons-cases and on this ground some of the High Courts, namely, Andhra Pradesh and Gujarat High Courts have taken the view that this provision does not apply to summons-cases. But some other High Courts, including our own High Court, have taken a contrary view. As long back as in the year 1921, in the case of Gulam Rasul and Anr. v. King-Emperor AIR 1921 Pat 11 a Bench of this Court firmly held that Section 342 applies in the trial of summons-cases and its provisions are mandatory. I, therefore, feel inclined to take the view that the provisions contained in Section 313 of the new Code of Criminal Procedure do apply to the proceedings contained under Chapter VIII of the Code of Criminal Procedure.

Now having taken this view, a question further arises as to whether for the non-compliance of this provision, the order should be set aside. The preponderant view in this country seems to be that although the provision of Section 313 is mandatory and should be followed as far as practicable, its non-compliance or for that matter its part compliance, does not necessarily vitiate the trial or the proceeding, as the case may be, unless the court is satisfied that on that account any prejudice has been caused to the accused. Reference may be made to only one case of the Supreme Court, namely, the case of Makan Jivan and Others Vs. The State of Gujarat, . Where it was observed that mere non-compliance of this provision was not sufficient and the courts must come to a conclusion that on this account a prejudice was caused to the accused concerned.

Before answering this question finally, I may notice yet another ancillary contention that was advanced on behalf of the petitioners namely that according to the scheme of Section 107, the bond for keeping the peace has to be taken for a period not exceeding one year which expired long before and, therefore, the order should be vacated. There is authority for the proposition that where the period of one year elapses simply on account of the proceeding remaining pending in an appeal or revision, this would not entitle the person called upon to execute a bond, to obviate the execution of the same. I find that this proceeding was started in the year 1976 the ground for apprehension being the tendency of some criminal cases between the parties. The final order in this case was passed on 21-4-1976, and more than two and a half years have elapsed, as the matter remained pending either in the court of appeal below or in this Court. Counsel for neither party are in a position to inform us as to whether the criminal proceedings between the parties have come to an end. In these circumstances, in my opinion, the better course to adopt would be to remit the matter back to the learned Executive Magistrate with a direction to call for a fresh report from the police or to ascertain from any other material or source as to whether the apprehension of breach of the peace still continues between the parties. If it still does, then the petitioners will be called upon to execute the bonds in question, of course without any sureties, for such period as the learned Executive Magistrate may now determine. This part of my order necessarily means that I do not feel satisfied that any prejudice has been caused to the petitioners on account of the non-compliance of the provisions of Section 313 of the Code and, therefore, I do not feel persuaded to set aside the order as a whole on that account.

I, therefore, hold and would answer the legal points in this way ; u/s 107 of the new Code of Criminal Procedure, a person cannot be called upon to execute a bond with sureties as he could be called under the old Code and that the provision of Section 313 applies to such a person also and therefore he must be examined by the Court below before he is called upon to adduce his evidence. Attempt should, therefore, always be made by the Magistrate to follow the provisions of Section 313 as far as practicable.

In the result, the application succeeds to the extent as indicated above and the matter is remanded back to the Magistrate for passing a fresh order in terms of my directions made above.