Shankar Lal and Others vs State of H.P.

M.R. Verma, J.—This criminal revision petition under Sections 397 and 401 of the Criminal Procedure Code (hereafter referred to as ''the Code'') is directed against the order dated 9-7-2001 passed by the Additional District Magistrate, Pooh whereby the petitioners have been called upon to execute personal bonds each in the sum of Rs. 1000/- to maintain peace till the conclusion of the inquiry initiated against them u/s 107 of the Code.

Brief facts leading to the presentation of this petition are that an inquiry u/s 147 of the Code is pending regarding dispute of water supply and laying of pipes. During the course of such inquiry apprehending breach of public peace the said Magistrate initiated the inquiry u/s 107 of the Code and directed issue of notices u/s 111 of the Code to the petitioners vide his order dated 2-7-2001 calling them upon to show cause why they should not execute personal bonds each in the sum of Rs. 2000/- with one surety in the like amount to maintain peace because they being members of Garden Colony Committee had posed serious problems of breach of peace by instigating and provoking general public of Pooh village by misleading them by giving wrong information about the administrative inquiry pending regarding the dispute.

On 9-7-2001, the petitioners appeared before the said Magistrate who, on their failure to file replies to the show cause notices, granted them 5 days time to file the replies and simultaneously proceeded to direct the petitioners u/s 116(3) of the Code to furnish interim personal bonds each in the sum of Rs. 1000/-. However, time for furnishing the personal bonds was allowed till 5 P.M. on 17-7-2001. Being aggrieved by this order, the petitioners have preferred the present revision petition.

I have heard the learned Counsel for the petitioners and the learned Assistant Advocate General for the respondent and have also gone through the records.

It is evident from the zimni order dated 9-7-2001, as maintained by the Additional District Magistrate, seized of the matter that the impugned order has been passed by him under Sub-section (3) of Section 116 of the Code which reads as follows:

Inquiry as to truth of information.-

(1 )& (2). ... ... ... ... (3). After the commencement, and before the completion, of the inquiry under Sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order u/s 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:

Provided that-

(a) no person against whom proceedings are not being taken u/s 108, Section 109, or Section 110 shall be directed to execute a bond for maintaining good behaviour ;

(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order u/s 111.

A bare reading of the aforesaid provisions make it clear that the object thereof is to empower the Magistrate to direct a person against whom an order u/s 111 of the Code has been made to execute a bond for keeping the peace until the conclusion of the inquiry. However, the exercise of these powers is dependant upon the Magistrate considering that immediate measures are necessary for any of the following purposes:

(a) for prevention of a breach of peace or disturbance of public tranquillity or commission of any offence or

(b) For the public safety.

It is also clear from the framework of the aforesaid Sub-section that an order under this Sub-section calling upon a person to furnish interim bond can be passed only during the inquiry i.e. after the commencement and before the completion of such inquiry. Under Sub-section (1) of Section 116 of the Code which contemplates that after complying with the requirements of Sections 111, 112, and 113 of the Code as the case may be "the Magistrate shall proceed to enquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary". It follows that unless the inquiry, as contemplated under Sub-section (1) of Section 116 of the Code has commenced, the order calling upon a person to furnish interim bond cannot be passed. It is evidently so because the interim bond can be called upon only on the Magistrate being satisfied that immediate steps to achieve any of the aforesaid purposes are required and to arrive at such a satisfaction there must be material before the Magistrate.

In Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, the Apex Court has held as follows: (Paras 41 to 43)

The first Sub-section read with the second requires the Magistrate to proceed to inquire into the truth of the information. The third Sub-section enables the Magistrate to ask for an interim bond pending the completion of the inquiry by him. This is conditioned by the fact that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for prevention of public safety. This is applicable where the person is not in custody and his being at large without a bond may endanger public safety etc. The Magistrate has to justify his action by reasons to be recorded in writing. If the person fails to execute a bond, with or without sureties, the Magistrate is empowered to detain him in custody.

A question was raised before us whether the Magistrate can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. Other learned Judges are of the opinion that Sub-sections (1) and (2) envisage that the Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording his reasons in writing can the interim bond be asked for. Some of the cases on the previous view are - Emperor v. Nabibux AIR 1942 Sind 86 : 1942 Cri LJ 788 Dulal Chandra Mondal Vs. The State, , Gani Ganai and Others Vs. State, and Laxmilal and Others Vs. Bherulal, Those representing the other view are - In re Muttuswami ILR (1940) Mad 335: AIR 1940 Mad 23: (1940 Cri LJ 233 ) (FB), In Re: Venkatasubba Reddy and Others, Jagdish Prasad Verma and Others Vs. The State, , Shravan Kumar Gupta Vs. Superintendent District Jail and Others, , Jangir Singh v. The State AIR 1960 Punjab 225 : (1960 Cri LJ 639), Rame Gowda and Others Vs. State of Mysore, and Ratilal Jasraj Vs. The State,

In our opinion the words of the section are quite clear. As said by Straight J. in Empress v. Babua ILR(1883) All 132 , the order u/s 112 is on hearsay but the inquiry u/s 117 is to ascertain the truth of the necessary information. Sub-section (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the person in custody. Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate. The facts must be of definite character. In Nafar Chandra Pal Chowdhury Vs. Emperor, there was only a petition and a report and these were not found sufficient material. In some of the cases before us no effort was made by the Magistrate to inquire into the truth of the allegation. The Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely one sided. It cannot be described as an inquiry within an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should, be made before action is taken to ask for an interim bond on placing the person in custody in default. In an old case reported in A.D. Dunne v. Hem Chunder (1896) 12 SWR 60 FB) a Full Bench of the Calcutta High Court went into the matter. The case arose before the present Code of Criminal Procedure and, therefore, there was no provision for an interim bond. But what Sir Barnes Peacock C.J. said applies to the changed law also not only with regard to the ultimate order but also to the interim order for a bond. The section even as it is drafted today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the Information sufficient to make out a prima facie case a person is to be put in jeopardy of detention.

A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore, it is not open to a Magistrate to adjourn the case and in the interval '' to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed.

In view of the above, some inquiry should be made before the action is taken by an Executive Magistrate under Sub-section (3) of Section 116 of the Code. In the case in hand, the Additional District Magistrate on appearance of the petitioners before him on 9-7-2001 allowed them five days time to file replies to the show cause notice u/s 111 of the Code and without proceeding with the inquiry passed the impugned order only on the basis of the information as was available with him even on 2-7-2001 when show cause notices u/s 111 of the Code were ordered to be issued. A perusal of the record reveals that whatever information was available with the Additional District Magistrate was not supported by any statement of the witness or affidavits. Since no inquiry was held by the Magistrate before passing the impugned order, therefore, he has acted contrary to the provisions of Sub-section (3) of Section 116 of the Code. Thus, the impugned order being illegal is unsustainable.

As a result, this revision petition is allowed and the impugned order is set aside.

Parties are directed to appear before the Additional District Magistrate, Pooh on 30-4-2002.