Vidya Sagar and Others vs State of Himachal Pradesh and Another

Chet Ram Thakur, J.—This is a petition under Sections 397, 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) read with Article 227 of the Constitution of India.

Shri Kashmiri Lal Joshi, M.L.A., brother of Petitioner No. 1 on 7-4-1975 made a complaint to the Deputy Commissioner, Una, that he apprehended danger to his life from the Petitioners and that there was likelihood of breach of peace and prayed for a suitable action to be taken against the Petitioners. This application was sent to the police on 9-4-1975. The police made a report to the Sub-Divisional Magistrate under the provisions of Sections 107/151 of the Code on 18-4-1975, who summoned the Petitioners 1 to 6 for 21-4-1975, whereas Petitioner No. 7 was absent on that day as his summons were returned unserved. The Magistrate gave notice to the Petitioners u/s 111 of the Code, calling upon them to furnish bonds for Rs. 5,000 each for a period of one year with sureties in the like amount. By the same order, the Magistrate directed that the Respondents shall enter into bonds in the sum of Rs. 5,000 each with sureties in the like amount u/s 116(3) of the Code for the period during which the proceedings are to continue in the court. It was further observed that Respondents 1 to 6, who were present in the court were informed and they had furnished the surety bonds duly verified which had been attested and accepted. In so far as Respondent No. 7 was concerned summons along with the order passed under Sections 111 and 116(3) of he Code be sent for appearance on the next date of hearing which was fixed for 2-5-1975. It is against this order of the learned Sub-Divisional Magistrate, Una that the Petitioners have filed this petition through their counsel Shri P. N. Nag.

Learned Counsel for the Petitioners has contended that the charges explained, to the Petitioners were vague and did not contain specific allegations of likelihood of any breach of peace and according to him, the Magistrate should have dismissed the complaint holding it to be frivolous.

I have seen the record. Shri Kashmiri Lal Joshi, who is an M.L.A. addressed a letter on 7-4-1975 to the Deputy Commissioner to the effect that in the Beet area, which was his constituency, his brother Vidya Sagar had created an atmosphere of disturbance and that a propaganda was being carried against his person, whereby he apprehends danger to his life. He further stated that on 6-4-1975, in village Dulehar there was the election to the office of Pradhan of the Gram Panchayat and he also went there in connection with that. On the night of 5-4-1975 at 10 P.M. he heard Vidya Sagar and his associates talking loudly that this M.L.A. with one hand has only to survive for a day or two and that he would see that the administrator of the bank is also made to leave on 9-4-1975 and that Salig Ram would be turned out from the bank after belabouring him. On the morning of 6th April, 1975, he got from Sita Ram a message through one person that he should not come at the time of election because the atmosphere was totally against him at that place and that a conspiracy had been hatched by Vidya Sagar who had left that place on the night of 5th April, 1975. Later on in the day time he sent members of his own party to Dulehar and they found that on the way there were 4/5 persons who were standing with arms and they had knowingly put up obstacles on the way. They asked them as to where was the M.L.A. and why he was not brought with them on that day. Suram Singh intervened and saved them from their clutches. In the meanwhile 15/20 persons collected there and then the assailants ran away. This was the complaint which was sent to the police and the Magistrate passed the impugned order on a report made by the police.

The breach of peace was there on 6th April, 1975, over the election of the Pradhan of Gram Panchayat Dulehar and the order was passed after the election was over. The learned Magistrate has not given any finding whether or not there is still any likelihood of the breach of peace. In order to make an interim order, as contemplated u/s 116 of the Code, the Magistrate has to enquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary and it is only after the commencement and before the completion of the enquiry under Sub-section (1) of Section 116 that the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or the disturbance of the public tranquility or the commission of an offence or for the public safety, may for reasons to be recorded in writing direct the person in respect of whom the order under: Section 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. In the instant case the Petitioners appeared before the court in pursuance of the notice u/s 111 and the Magistrate without holding any inquiry as contemplated u/s 116, passed an order binding down the Petitioners in the sum of Rs. 5,000 each with sureties in the like amount for a period -during which these proceedings were to continue in the court. Section 116 requires that when a person appears pursuant to an order u/s 111, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. Sub-section (3) of Section 116 provides that 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 tranquility 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. Therefore what follows is that the Magistrate has to consider whether immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety that he is to make the order as contemplated thereunder. In the case in hand, as is apparent, the learned Magistrate without recording any evidence and applying his mind whether or not immediate measures were necessary passed the impugned order and which is clearly against the mandatory provisions of this section. The learned Magistrate has only observed that there is an apprehension of the danger which does not empower the Magistrate to make an order as contemplated under Sub-section (3) of Section 116 of the Code and he has to mention specifically after applying his mind that immediate measures were necessary for the prevention of a breach of the peace, but there is no such finding and as such this order is clearly without jurisdiction.

I may cite a few authorities in support of my view.

In Jagdish Prasad Verma and Ors. v. The State AIR 1957 Pan 106, it has been laid down:

It is only when the person is present in Court or has been brought before the Court, that a Magistrate can take into consideration whether circumstances to exist for taking immediate measures and, when he is fully satisfied that such circumstances do exist, then only he can direct the execution of an ad interim bond but, before taking recourse to S. 117 (3) he has to put his reasons in writing. An emergency order u/s 117(3) can only be made when the Magistrate has started to enquire into the truth of the information u/s 117(1), and in the course of that enquiry, he considers that immediate measures are necessary.

Further, it is observed in this very authority:

An order made u/s 117(3) is certainly bad if it is not accompanied by reasons recorded in writing why the Magistrate wants to take this emergency measure. Where the Magistrate did not give any reason, whatsoever, when demanding ad-interim bonds from the Petitioners and on the date fixed for execution of the ad-interim bonds, he merely expressed that the police report indicated that the members of the opposite party were likely to create a breach of the peace, this reason was not sufficient to pass an order u/s 117(3).

It may be stated here that this Section 117 is a verbatim reproduction of Section 117 of the old Code excepting Sub-sections (6) and (7) of Section 117.

In Ramasrey Prasad Choudhary and Others Vs. State of Bihar, where the police made a report for action to be taken u/s 107 of the Code but on the subsequent date the police prayed that as the situation was tense action u/s 117(3) of the Code might be taken against a particular number of Petitioners directing them to execute ad-interim bonds, the Magistrate after consideration of the police report passed the order directing the Petitioners to show cause by a particular date as to why they will not be ordered to execute bonds of Rs. 1000/- each with the sureties of Rs. 500/- each to keep peace within the period of one year. The Petitioners went in revision to the Sessions Judge, who refused to interfere and then they filed a further revision to the High Court and their main grievance was against the order directing them to execute ad-interim bonds u/s 117(3) of the Code for maintaining peace. According to them the stage for the execution of ad-interim bonds u/s 117(3) had not reached then and as such, the learned Sub-Divisional Magistrate was not justified in directing them to execute ad-interim bonds. Accepting this contention the High Court held, as inquiry against Petitioners had not commenced, stage for execution of ad-interim bonds had not arrived and hence that part of order must be set aside. A similar view was taken In Re: Venkatasubba Reddy and Others, .

In Prabhakar Nath Dwivedi Vs. District Magistrate, Allahabad and Another, also it had been held:

An emergency order u/s 117(3) can only be made when the Magistrate has started to enquire into the truth of the information u/s 117(1) and, in the course of that enquiry, he considers that immediate measures are necessary.

Therefore, keeping in view the above observations of the various High Courts, I am of the opinion that in this case also the Magistrate did not exercise the jurisdiction that was vested in him in a legal manner, inasmuch as he failed to give the reasons. He merely acted on the police report. The reasons could be given after satisfying himself from any affidavit given in evidence or by appearance of the S.H.O. in the witness box. There was neither any affidavit nor any other evidence so as to enable the Magistrate to come to the conclusion that an emergency order was necessary to prevent the breach of peace as contemplated u/s 116(3). Actually what happened in this case is that the Petitioners appeared in pursuance of a notice u/s 111 and, therefore, the Magistrate had first to proceed u/s 112 but by the same order he bound down the Petitioners under the provisions of Section 116(3). Sections 111 and 116 provide two different procedures for two different things and, therefore, the Magistrate had no jurisdiction to pass an order u/s 116(3) along with one u/s 111. An order u/s 116(3) can only be made when the Magistrate had started to enquire into the truth of the information as contemplated u/s 116(1). Therefore, in these circumstances the order of the learned Magistrate cannot be sustained for not having recorded his reasons which he could do only after he had taken the affidavit or the police officer had entered the witness box.

The objection of the learned Counsel for the Respondent is that this is an interlocutory order and that a revision is barred u/s 397(2) of the Code. That is true, if it is an interlocutory order. But here the Petitioners have not only come u/s 401 but they have invoked the inherent powers u/s 482 of the Code also which, in my opinion, are quite independent of the powers to be exercised by the High Court u/s 401 of the Code. Inherent powers can be invoked in case there is a failure or miscarriage of justice. In the instant case, I am of the view that the learned Magistrate totally ignored the mandatory provisions of Section 116 of the Code which require some inquiry to be held and he is to record reasons for coming to the conclusion that immediate measures arc necessary for prevention of the breach of peace. he had in fact not entered upon an enquiry and the proceedings were only at the stage of the proceedings u/s 111 of the Code. Therefore, in these circumstances the Court in exercise of its inherent powers can quash this order which is without jurisdiction and is against the mandatory provisions of the Act.

Shri H. K. Pal appearing for the Advocate-General had also relied upon Govinder Singh Verma and Anr. v. Mrs. Bachubai T. Pestonji and Anr. (1971) 2 A.W.R. 589 to support his contention that the Sub-Divisional Magistrate was perfectly justified in passing the order purporting to be one in exercise of Section 116(3) of the Code. But, the facts of this authority are distinguishable. In that case before the exercise of the powers u/s 117(3) of the Code of Criminal Procedure, the Magistrate had examined the Appellants and the Sub-Inspector. He had also passed an order u/s 113 of the Code requiring each of the Appellants to show cause why he should not be asked to furnish a surety and a personal bond for maintaining the peace. Here, in the instant case, the Magistrate while exercising power u/s 112 also made an order u/s 116(3) which was not warranted by law. The Magistrate had to apply his mind and after having given the reason he could have passed the order. But, there are no reasons and no enquiry has been entered upon, he merely acted upon the police report drawn up against the Petitioners.

Consequently, the order of the learned Magistrate is bad and is liable to be quashed and which I accordingly do.