Satyanarayan Gantayet and Others vs The State and Others

K. Ahmad, C.J.—The applications in both these cases are directed against a common order dated 24-3-65 passed u/s 117(3), Cr. P. C. It was based on a police report submitted before the Sub Divisional Officer on 24-3-65 In the report it was stated that there was an imminent danger of breach of peace between two parties who are the respective petitioners in these two revision applications and that it was necessary that the proceeding u/s 107, Cr. P. C. be drawn against both of them. The Learned Sub Divisional Officer, on a consideration of that report, passed a composite order taking action thereby both u/s 112, Cr. P. C. and u/s 117(3), Cr. P. C. The order read as follows:

"Gone through the report of the O. 1. C. Berhampur town P S. in his non-FIR-No. 102/ 65 and I am convinced that there is imminent breach of the peace.

In order to avoid imminent breach of peace, it is imperative that the Parties should execute bond for Rs. 500 with one surety for the like amount for a period of one year.

They are to show cause why they shall not execute a bond for Rs. 500 with one surety for the like amount for a period of one year and shall put up W. S. to that effect by 28-3-65. They are to file W. S. by that date.

It is further ordered that the parties are to execute interim bond u/s 117(3) Cr. P. C. in view of apprehension of imminent breach of peace."

It is against this order that the members of the first party in Criminal Revision No. 541 of 1965 and one of the members of the second party in Criminal Revision No. 409 of 1965 have come to this Court. The case of the petitioners in Criminal Revision No. 541 of 1965 has been argued by Mr. P.V. Ramdas and the case of the petitioner in Criminal Revision No. 409 of 1965 has been argued by Mr. N. V. Ramdas. The two main points which have been canvassed in support of both the petitions are (1) that the order under revision being a composite order is illegal; and (2) that in any case the order passed u/s 117(3) Cr. P. C. is bad in law in so far as it does not disclose any reason in support thereof.

The first question is based on the assumption that an order u/s 117 (3) Cr. P. C. may be passed only when an enquiry under S 112 Cr. P. C has already been taken up for consideration and that unless the proceeding u/s 112 Cr. P. C. has come to that stage, the Magistrate has no jurisdiction to take action u/s 117(3) In my opinion, there is no substance in this contention Subsection (3) of Section 117 Cr. P. C provides that pending completion of inquiry the Magistrate may direct the person in respect of whom the order u/s 112 has been made, to execute a bond for keeping the peace or maintaining good behaviour until the conclusion of the enquiry.

The exercise of this power is sub ject to two conditions only (i) that the Magistrate considers that immediate measures are necessary for prevention of a breach of the peace, and (ii) that the reasons in support of that consideration are recorded in writing. In my opinion, if these two conditions are complied with, an order u/s 117(3) may be passed at any time during the period commencing from the date when an order u/s 112 Cr. P. C. has been passed till the disposal of the enquiry. The opening phrase, "pending the completion of the enquiry" cannot be construed to mean that the power under S 117(3) is open to be exercised only when an enquiry as provided u/s 112 has already commenced. Such a construction of Section 117 (3) will negative the very purpose underlying it.

The condition laid down therein that "if he considers that immediate measures are necessary for the prevention of a breach of the peace" clearly contemplates that the power given u/s 117 (3) is to meet the emergency which may arise as a result of imminent danger of a breach of the peace. The sense of emergency as contemplated therein is not confined to those events only which may happen after the commencement of enquiry u/s 112, but is in relation to the entire situation which may arise in the case right from the time when an order u/s 112 is passed.

The entire object underlying this Sub-section (3) of Section 117 is to have a complete control over the entire situation that may develope at any time between the date when an order u/s 112 is passed and the date when an enquiry thereunder is concluded. Therefore, the submission made on behalf of the petitioners that a composite order both u/s 117(3) and u/s 112 cannot be passed is erroneous and contrary to the very purpose underlying Section 107 and Section 117(3) of the Criminal Procedure Code. This is so is also supported by the decisions in Upendranath Kanungo and Others Vs. State at the instance of Hadibandhu Kanungo and Another, and Amir Singh v. The State AIR 1962 Pat 61. It is true that the considerations which are to weigh with the Court for passing orders under the two sections--One under S 112 and the other u/s 117(3) as laid down therein, are not the same but different. The consideration which has to weigh in the case of an order u/s 112 is the likelihood of a breach of the peace or of the disturbance of public tranquillity; while that which has to weigh in the case of an order u/s 117(3) is the requirement of the immediate measures for the prevention of a breach of the peace or disturbance of public tranquillity. The difference however between the two considerations is only one of degree in regard to the urgency with which action has to be taken for the prevention of a breach of the peace or disturbance of public tranquillity. Therefore, the situation will vary from case to case. In some an action u/s 112 alone may be considered necessary, while in others as the enquiry u/s 112 proceeds, the action u/s 117(3) may also be considered necessary to be taken But there may still be another class of cases different to both. where the danger of breach of the peace or disturbance of public tranquillity is so imminent that any action u/s 112 alone is not considered sufficient to cope with the situation unless it is supplemented then and there with an order u/s 117(3) also. Thus there is no substance in the contention that the exercise of the power u/s 117(3) is dependent on the commencement of the enquiry u/s 112. Therefore, the first contention fails.

Then, as to the second contention this much is true that as urgency of the matter is the guiding principle for the exercise of jurisdiction u/s 117(3). there must be evidence on the record to show that the mind of the court in passing the order thereunder was alive to this aspect of the matter; otherwise it cannot be said with certainty that the order passed u/s 117(3) is not a simple mechanical order or an order passed for a purpose ulterior to Section 117(3) Therefore, in order to satisfy this condition it is necessary that the reasons which may have guided the court to take action u/s 117(3) should be recorded in the order That will give clear proof of the fact that the court in passing the order u/s 117(3) was fully alive to the requirement of the section and applied its mind fully to the facts of the case in the light of that requirement.

In the present case the court, in taking action u/s 117(3) has specifically mentioned that there was apprehension of imminent breach of the peace. The learned counsel appearing for the petitioners state that this reason as given by the Court, is more or less mechanical and general; it does not establish that the court in passing the order u/s 117(3) did apply its mind to the facts of the present case.

In my opinion there is no substance in this contention It is a different matter that the court in passing the order u/s 117(3), could have been more definite and express; but the order as it stands has to be read in the light of the materials that were found present before it in the police report. Therefore, the mere fact that the reason given in the order itself is not very elaborate or definite can be no ground for holding that it was passed without jurisdiction. Therefore the second contention also fails In view however of the fact that this order u/s 117(3) was made as far back as 24-3-65 and so far there has been no report of any overt act on the part of any of the two parties, the matter I think does deserve reconsideration by the Court.

I am told that these petitioners have been since the date of the order passed on 24-3-65 very careful in maintaining the peace and have not given any occasion to the authority for the apprehension that there was still any imminent danger left for the breach of the peace. If that is so, that may be a good ground for the petitioners to file an application before the Court below to vacate the order already passed on 24-3-65 u/s 117 (3), Cr. P. C., if they are so advised, and in that case I have no doubt that the Court below will give full consideration to their prayer made.

With these observations both the applications are dismissed.