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Allahabad High Court · body

1967 DIGILAW 323 (ALL)

Badlu v. State of U. P.

1967-09-08

C.B.CAPOOR, H.C.P.TRIPATHI, J.S.TRIVEIDI

body1967
ORDER C.B. Capoor, J. - This is a petition u/s 561A of the Code of Criminal Procedure for the quashing of proceedings u/s 107/117 Code of Criminal Procedure pending against the Applicants. The main ground on which the petition is based is that by a notice issued u/s 112 of the Code of Criminal Procedure the Applicants were required to show cause as to why they be not required to execute a bond to keep peace for a period of one year and as the said period of one year has expired the proceeding cannot continue and in support of that contention reliance has been placed upon a ruling of this Court reported as Babu Ram and Anr. v. Rex AIR 1949 All 21 : 1948 AWR 214 (H.C.). Before proceeding to discuss the aforesaid decision I propose to consider the question as if it were one of first impression. The Applicants have not been required to furnish interim security and as such Section 117 of the Code is not material. The relevant sections of the Code are 107, 112, 118 and 120. Sub-section (1) of Section 107 of the Code of Criminal Procedure inter alia provides that whenever a Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or Magistrate of the 1st Class is informed that any person is likely to commit a breach of peace...the Magistrate, if in his opinion there is a sufficient ground for proceeding may...require such person to show cause why he should not be ordered to execute a bond, with or without surity, for keeping peace for such period not exceeding one year as the Magistrate thinks fit. It is significant that the section does not require that the period for which the person proceeded against may be required to execute a bond should commence from the date on which notice to show cause is either given or served. The order requiring a bond to be executed is to be made after an opportunity has been afforded to the person proceeded against to show cause and the Magistrate is satisfied that there is sufficient ground for proceeding. The final order is made u/s 118 of the Code and if the person proceeded against is required to execute a bond the period for which the bond is to be operative must in the very nature of things commence from the date of the execution of the bond. The final order is made u/s 118 of the Code and if the person proceeded against is required to execute a bond the period for which the bond is to be operative must in the very nature of things commence from the date of the execution of the bond. There is nothing in Sections 107, 112 and 118 of the Code to indicate that the period for which the person proceeded against may be required to execute a bond is to commence from the date when the notice u/s 112 of the Code is either given or served. On the other hand Section 120 of the Code clearly provides that the period for which the bond is required to be executed shall commence from the date of such order unless the Magistrate for sufficient reason fixes a later date or the person proceeded against is sentenced or is undergoing a sentence of imprisonment in which case the period shall commence on the expiration of such sentence. Adverting to the Allahabad case relied upon on behalf of the Applicant one finds that neither any section of the Code nor any Judicial authority on the point under consideration was specifically referred to. The view expressed in the aforesaid case was expressly dissented from by the Patna High Court in the case of Jangi Gope and Ors. v. The State through Ram Shakal Singh (infra). During the course of the judgment the learned Judge made the following observations: With great respect, I differ from the view taken by the learned Judge. If that were the correct position in law, then in all cases where because of long pendency of any appeal or revision the period initially fixed by the Magistrate for keeping the peace had expired, the proceeding taken u/s 107 Code of Criminal Procedure will automatically fail. In most cases it will be difficult to dispose of an appeal from the order u/s 118 Code of Criminal Procedure and revision, if any, from the appellate order, during the period fixed by the Magistrate for keeping the peace. If that were so, it will be easy for the persons bent upon disturbing the peace to destroy the effect of such proceeding by adoption of delaying tactics. If that were so, it will be easy for the persons bent upon disturbing the peace to destroy the effect of such proceeding by adoption of delaying tactics. The entire argument is fallacious and unreasonable to the extreme in that the very act of the persons bent upon committing the breach of the peace is used in their favour as a ground for quashing the entire proceeding. It is difficult to countenance such a course of conduct. If it were so, no proceeding u/s 107 will have a successful termination because by causing deliberate delay and by taking an appeal from the order and hampering its expeditious disposal on some frivolous grounds or other the order of the Magistrate may be rendered easily infructuous, because of the expiration in the meantime of the period for keeping the peace or maintaining good behaviour, as the case may be, before the disposal of the connected appeal or revision. This contention is therefore supportable neither on principle nor on grounds of expediency. I am, therefore, unable to accept this contention. The proper course in such cases is that the period during which the Petitioners were to keep the peace or maintain good behaviour, as the case may be should be made operative from the date fixed by the appellate or revisional authority. I would, therefore, overrule this contention. With great respect to the learned Judge who decided the Allahabad case there appears to me to be considerable force in the aforesaid observations. There is a case of the Kerala High Court Govindan Nair v. State (infra) in which it was held that the period for which security is to be given is to commence from the date of the final order u/s 118 and not from the date of the preliminary order u/s 112 unless a Magistrate otherwise directs and that if preliminary order is silent as to the date of the commencement of the period the court is bound to give effect to the statutory provision. The 1949 Allahabad case (supra) was distinguished. Unfortunately the report of the aforesaid case is not available either in the Court Library or in the Library of the Bar Association and as such I have not been able to examine the aforesaid case in detail. The 1949 Allahabad case (supra) was distinguished. Unfortunately the report of the aforesaid case is not available either in the Court Library or in the Library of the Bar Association and as such I have not been able to examine the aforesaid case in detail. On a consideration of the language of the relevant sections of the Code 112, 118 and 120 and of the weighty reasons assigned by the Patna High Court while dissenting from the Allahabad view, I, with respect to the learned Judge of the Allahabad High Court in 1949 case (supra), am not inclined to agree with the view expressed therein. However, keeping in view the dictates of propriety I do not propose to pass a final order and direct that the application be laid before the Hon'ble the Chief Justice for considering the desirability of ordering that the application be laid before a Bench of two Judges at an early date for disposal. DIVISION BENCH Tripathi, J. This is a petition u/s 561-A of the Code of Criminal Procedure for quashing of proceedings u/s 107/117 Code of Criminal Procedure pending against the Petitioners in the court of a Magistrate First class, Jalaun. It first came up for hearing before Hon'ble Capoor, J. who has referred it for consideration by a Bench of two Judges. The facts of the case lie in a narrow compass: The SDM, Jalaun, received information from a police report dated 21-9-1965 that the Petitioners were likely to commit a breach of peace. Accordingly he initiated proceedings against them u/s 107/117 Code of Criminal Procedure and issued a notice on the same date u/s 112 of the Code requiring the Petitioners to show cause why they should not be ordered to execute a personal bond for Rs. 500/- each with two sureties in the like amount to keep the peace for a period of one year. This petition is directed against those proceedings inter alia on the assertion that as the period of one year given in the notice u/s 112 Code of Criminal Procedure has already expired the proceedings cannot continue any further and the Magistrate has no jurisdiction to proceed against the Petitioners. In support of this contention learned Counsel for the Petitioner has placed reliance on the decision of Agarwala, J. in the case of Baburam v. Rex AIR 1949 All 21 : 1948 AWR 214 HC. 2. In support of this contention learned Counsel for the Petitioner has placed reliance on the decision of Agarwala, J. in the case of Baburam v. Rex AIR 1949 All 21 : 1948 AWR 214 HC. 2. The learned single judge noticed a divergence of judicial opinion on the question raised in the petition and felt difficulty in agreeing with the view taken in the aforesaid Allahabad case. He has, therefore, referred it to a Division Bench. 3. We have heard learned Counsel for the parties. 4. In our opinion the observations made in the case of Baburam by Agarwala, J. are not applicable to the facts of this case and the principle enunciated therein is distinguishable. In Baburam's case, the notice u/s 112 Code of Criminal Procedure was issued on 18-8-1947, requiring the parties concerned to furnish securities for a period of three months commencing from that date. It was in that context that the learned Judge had held that as the period of three months commencing from the date of the notice had already expired there was no other option but to drop the proceedings. 5. Ch. VIII, Part IV of the Code provides an elaborate procedure for asking security for keeping the peace and for good behaviour and provisions of Sections 107, 112, 114, 117, 118 and 120 of the Code are relevant to the question in controversy. Section 107 inter alia provides that if a Magistrate is satisfied that there is sufficient ground for proceeding he may "in manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix." The important clauses which require notice in this section are "in manner hereinafter provided" and "for such period not exceeding one year". It is obvious that under the terms of this section the period for which the person proceeded against is required to execute the bond cannot exceed one year and the requirement is to be made in the manner provided in the subsequent sections of the Code. It is obvious that under the terms of this section the period for which the person proceeded against is required to execute the bond cannot exceed one year and the requirement is to be made in the manner provided in the subsequent sections of the Code. Section 112 reads: When a Magistrate acting u/s 107...deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties (if any) required. Section 112 thus lays down the ingredients of the notice which is to be read over to the person proceeded against. Section 114 provides for the issue of summons or warrant in case the person proceeded against is not present in court and Section 115 lays down that such summons or warrants shall be "accompanied by a copy of the order made u/s 112...which shall be delivered to the person served with the notice or warrant. Section 117 empowers the Magistrate seized with the proceedings "to 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" and the inquiry shall be made in the manner prescribed for conducting trials and recording evidence in summons cases. 5. 118 postulates an enquiry on the basis of the aforesaid notice and when on the conclusion of the enquiry the Magistrate after hearing the party concerned and giving him an opportunity to lead defence is satisfied that the person be asked to execute a bond he will make such an order. 6. A reading of the aforesaid sections makes it clear that the proceedings started u/s 107 and the notice given u/s 112 are provisional in nature and after holding an enquiry the Magistrate can come to the finding that there was no necessity of requiring the person proceeded against to execute any bond or to furnish sureties. In such eventuality he can discharge the notice against him. It is thus obvious that till the stage of Section 118 everything is provisional and only when an order has been passed after the conclusion of the enquiry that the person proceeded against is required to execute a bond. In such eventuality he can discharge the notice against him. It is thus obvious that till the stage of Section 118 everything is provisional and only when an order has been passed after the conclusion of the enquiry that the person proceeded against is required to execute a bond. In the very nature of things, therefore, the period for which the bond or sureties has been required u/s 112 is to commence either on or after the final order has been passed u/s 18. This becomes further obvious from the fact that for maintaining the peace during the interim period the Magistrate has been authorised u/s 117(3) of the Code to direct the person in respect of whom the order u/s 112 has been made to execute a bond, with or without sureties, for keeping peace and maintaining good behaviour until the conclusion of the inquiry. Section 120 reads: (1) If any person in respect of whom an order requiring security is made u/s 106 or Section 118, is, at the time such order is made, sentenced to, or undergoing a sentence of imprisonment, the period for which such security is required shall commence on the expiration of such sentence. (2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date. In Sub-section (2), "such order" refers to an order passed u/s 118. The provision of Sub-section (2) makes it absolutely clear that unless the Magistrate for sufficient reason fixes a later date the period is to commence from the date of the order u/s 118 and not from the date of the notice u/s 112. 7. In Sub-section (2), "such order" refers to an order passed u/s 118. The provision of Sub-section (2) makes it absolutely clear that unless the Magistrate for sufficient reason fixes a later date the period is to commence from the date of the order u/s 118 and not from the date of the notice u/s 112. 7. As early as 1927, the Madras High Court had taken the view that it was not possible to accept the contention that it is not open to the trial court to order security for more than one year from the date of the preliminary order because "such an interpretation of the law is bound to encourage accused persons in prolonging the trial as long as possible, since the longer they prolong it, the shorter will be the time for which they give security; in fact, were they successful in prolonging the trial for one year, they will escape having to give security at all and render the whole proceedings something a farce...Section 120, Sub-section (2) lays down clearly that the period for which security shall be given shall commence on the date of the order u/s 118, that is, the date of the final order--In re Taranagowd and six others ILR, LI, Mad 515. The Madras view was followed by a Division Bench of the Travancore Cochin in Govindan Nair Balkrishnan Nair v. State AIR 1952 TG 433, where the learned Judges distinguished Baburam's case on the ground that in that case the preliminary order called upon the Petitioners to show cause why they should not be bound to maintain the peace for a period of three months commencing from a specified date in the notice itself. In the case of Jangi Gope and Others Vs. The State, AIR 1959 Patna 304 a learned single Judge of the Patna High Court differed from the view taken in the Allahabad case. We are, however, of the opinion that the view taken in Baburam's case (supra) was correct inasmuch as in a case where the notice u/s 112 Code of Criminal Procedure mentions the date of commencement of the period and if that period has expired before the final order u/s 118 is passed there is no other option but to drop the proceedings as the notice had exhausted itself. 8. 8. Our conclusions therefore are that (a) where a person has been served with a notice u/s 112 requiring him to show cause as to why he should not be asked to execute a bond and to furnish security for keeping the peace for a particular period not exceeding one year the said period has to commence either on the date of the final order u/s 118 or after it and not from the date on which the preliminary order u/s 112 is made, (b) in view of the provisions of Section 120(2) a Magistrate has no jurisdiction to fix the date of the commencement of the period in the preliminary order u/s 112 unless the enquiry has concluded and a final order has been passed u/s 118 and (c) where immediate measures are, however, necessary for the prevention of the breach of peace or disturbance of the public tranquility a Magistrate can pass an order directing the person proceeded against to execute a bond and to give security for keeping peace or maintaining good behaviour during the pendency of the proceedings. 9. In the instant case the preliminary order u/s 112 fixes no date for the commencement of the period and therefore, the principle of law enunciated in the aforesaid Allahabad case does not come into play and in view of clear provisions of Sub-section (2) of Section 120 Code of Criminal Procedure such period is to commence from the date of the final order. 10. In this view of the matter we are of opinion that there is no substance in the argument of the learned Counsel that on account of expiry of the period mentioned in the preliminary order the proceedings against the Petitioner are not maintainable. 11. The other grounds taken in the petition being foreign to the scope of Section 561-A, cannot be entertained. 12. The petition is dismissed.