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1969 DIGILAW 133 (PAT)

Purshottam Ram Agarwal v. State Of Bihar

1969-08-26

SHAMBHU PRASAD SINGH

body1969
Judgment Shambhu Prasad Singh, J. 1. These two applications in revision arise out of the same proceeding under Sec.107 of the Code of Criminal Procedure (hereafter to be referred as the Code hence they have been heard together and are being disposed of by a common judgment. Criminal Revision No. 43 of 1969 is by twelve members of the second party to the proceeding and is directed against an order dated the 8th October 1968. Criminal Revision No. 39 of 1969 is by four other members of the second party to the same proceeding and is directed against an order dated the 9th October 1968. 2. It appears that the Circle Officer, Sahebganj Achal in the district of Muzaffarpur sent to the Sub-Divisional Magistrate, Sadar Muzaffarpur a letter dated the 30th September, 1968, stating that petitioners 1 and 2 of Criminal Revision No. 34 of 1969, and their father, Shankar Prasad Agarwal were going to open a daily market with effect from the 1st of October 1968, at a distance of hardly 1/4th of a furlong from the Hawalganj Nawanagar Kothia Bazar of the Government and that if they were allowed to open a daily market, the Government market would be totally finished resulting in a loss of five to six thousand rupees per annum to the Government, The Circle Officer, accordingly, requested the Sub-divisional Magistrate to take immediate necessary action so that the Government market may not be hampered,, and to issue direction to the Officer-in-charge Sahebganj Police Station to stop the opening of the said market from the 1st of October, 1968 till the final decision (of the Sub-divisional Magistrate). The Sub-divisional Magistrate was also requested to take immediate action under Sec.107/144 of the Code. On receipt of this letter, which hag been made Annexure 1 to the petition the Sub-divisional Magistrate registered case No. 866 of 1968, under Sec.144 of the Code and directed the police to take action under Sec.151/107 of the Code. That order is not before me but the substance of it has been mentioned in the impugned order dated the 8th October, 1968. It is not quite clear that when a proceeding was drawn up under Sec.144 and not under Sec.107 of the Code, how could the Sub-divisional Magistrate ask the police to take action under Sec.107 of the Code. That order is not before me but the substance of it has been mentioned in the impugned order dated the 8th October, 1968. It is not quite clear that when a proceeding was drawn up under Sec.144 and not under Sec.107 of the Code, how could the Sub-divisional Magistrate ask the police to take action under Sec.107 of the Code. On the 5th of October, 1968, the Circle Officer, Sahebganj, sent a letter (Annexure 2 to the petition) to the Officer-in-charge Saheb-ganj Police Station stating therein that in spite of imposition of an order under Sec.144 of the Code, the market has been started on the 1st of October 1968, and that the party concerned were ready to take law into their own hands forcibly against the Government employees. He requested the Officer-in-charge to make over to him a copy of the report which was going to be submitted to the Subdivisional Magistrate. It was also pointed out in the letter that the incident created by the party by holding a parallel market against the open defiance of the Government orders proved that there was no law and order in the Sahebganj Market. He also forwarded a copy of this letter to the Subdivisional Magistrate, On the 8th October, 1968, the Subdivisional Magistrate drew up a proceeding under Sec.107 of the Code against the petitioners of Criminal revision no. 43 of 1969. Perhaps it was drawn on the basis of Annexure 2 to the petition, but there is nothing in the order itself to indicate what materials other than the letter of the Circle Inspector dated the 30th September, 1968, he had before him to justify starting of a proceeding under Sec.107 of the Code. By the same order he also issued notices to the petitioners of Criminal Revision No. 43 of 1969 calling upon them to show cause as to why they should not be ordered to execute ad interim, bonds of Rs. 2000.00 with two sureties of like amount each under Sec.117 (3) of the Code. On the 9th of October. 1968, he received a report of the Officer-in-charge Sahebganj Police Station and drew up a proceeding under Sec.107 of the Code against the petitioners of Criminal Revision no. 39 of 1969. He also sent notices to them under Sec.116 (3) of the Code. On the 9th of October. 1968, he received a report of the Officer-in-charge Sahebganj Police Station and drew up a proceeding under Sec.107 of the Code against the petitioners of Criminal Revision no. 39 of 1969. He also sent notices to them under Sec.116 (3) of the Code. In the police report it is stated that the Thikedars of the Government market were requesting the Shopkeepers not to go to the newly started market of petitioners 1 and 2 of Criminal Revision No. 43 of 1969, on which some of the petitioners retorted them and became prepared even to assault them. After this the situation became tense and there was likelihood of a breach of the peace. 3. Mr. J. N. Verma for the petitioners has contended that unless the petitioners had appeared in an enquiry as contemplated under Sec.117 (1) of the Code, the Subdivisional Magistrate could not have issued notices under Sec.117 (3) of the Code. It is now well established that no action under Sec.117 (3) of the Code can be taken before an enquiry under Sub-section (1) of that Section has started and that such an enquiry cannot start unless the persons against whom a proceeding under Sec.107 of the Code has been drawn up have appeared before the Court. Mr. C. K. Sinha appearing on behalf of the State has frankly conceded that this part of the order of the Magistrate was wrong, but has contended that the Magistrate has also passed another order for execution of bonds under Sec.117 (3) of the Code on the 2nd of November, 1968, after the petitioners appeared before him and they have executed the bonds. In the circumstances he has submitted that even if the issue of show cause notices for action under Sec.117 (3) of the Code by orders dated the 8th and 9th of October, 1968, be wrong, they should not be set aside by this court in exercise of revisional powers. It is not, however, necessary to decide this question as Mr. Verma has also attacked the drawing up of the proceeding itself and is going to succeed on that point. If the initial order itself is illegal the order under Sec.117 (3) of the Code must also be set aside. 4. The contention of Mr. It is not, however, necessary to decide this question as Mr. Verma has also attacked the drawing up of the proceeding itself and is going to succeed on that point. If the initial order itself is illegal the order under Sec.117 (3) of the Code must also be set aside. 4. The contention of Mr. Verrna is that the materials before the Subdivisional Magistrate did not justify drawing up a proceeding under Sec.107 of the Code. He has submitted that every citizen of the country has got fundamental right as guaranteed by Article 19 of the Constitution of India to carry on any trade and business and neither the Circle Officer was right in asking the Sub-divisional Magistrate not to allow some of the petitioners to open a market of their own near the Government market as that would diminish the income of the Government, nor the Subdivisional Magistrate was right in starting a proceeding under Sec.144 or under Sec.107 of the Code against the petitioners on that basis. There is nothing in the letter of the Circle Officer dated the 30th September, 1966, that the petitioners were likely to break the peace. Even In his letter dated the 5th October, 1968, to the Officer-in-charge Sahebganj Police Station he did not allege that the petitioners had really committed any act likely to cause a breach of the peace. He merely stated that it was reported to him that they were ready to take law into their own hands forcibly against the Government employees. In the police report also there is nothing to indicate that the petitioners took the initiative and on that account there was an apprehension of a breach of the peace. Only when the Thikedars of the Government market started interfering with the free choice of the shopkeepers either to go to the newly established market of some of the petitioners or to the Government market, the trouble started. Mr. Sinha has urged that the Thikedars had every right to request the shopkeepers peacefully not to go to the newly started market, but to the Government market. That may be so, but the police report read as a whole indicates that the Thikedars of the Government market went near the newly started market and started canvassing to the shopkeepers not to go to the new market, but to the Government market. That may be so, but the police report read as a whole indicates that the Thikedars of the Government market went near the newly started market and started canvassing to the shopkeepers not to go to the new market, but to the Government market. In the circumstances, if some of the petitioners abused them, it cannot be said that they were responsible for a breach of the peace. Really it was the Thikedars of the Government market whose action was responsible. In the circumstances, the Subdivisional Magistrate rather should have drawn up a proceeding under Sec.107 of the Code against the Thikedars of the Government market and those Government employees who were supporting them and thus interfering with the exercise of the fundamental right of the petitioners of carrying on trade and business. The two impugned orders of the Sub-divisional Magistrate drawing up of the proceedings under Sec.107 of the Code against the petitioners as well the consequential order for execution of interim bonds by the petitioners under Sec.117 (3) of the Code have to be quashed. 5. Before closing the judgment, I would like to observe that this case provides an instance" justifying that sooner, the executive and judicial powers even in respect of preventive matters, such as proceedings under Sections 144, 107 and 145 of the Code are completely separated, the better. Really the Subdivisional Magistrates are not to be blamed because in the changed circumstances they have to look after the rights of State in the Government property, and at the same time carry out judicial functions and there is bound to be conflict between the two. It is really the system which is to be blamed. However so long separation does not take place, they have to act in such a way that their judicial orders are not called improper. 6. In the result the applications are allowed and the orders dated the 8th and the 9th of October 1968, are quashed. If there be an apprehension of a breach of the peace in future, it will be open to the Subdivisional Magistrate to start a fresh proceeding under Sec.107 of the Code, but not in such a manner as to interfere with the fundamental rights of the petitioners. Before starting proceeding he should satisfy himself as to who is really at fault; whether the petitioners or the Government Thikedars and employees.