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1970 DIGILAW 143 (KER)

C. v. ANANDAN MASTER

1970-07-29

E.K.MOIDU

body1970
Judgment :- 1. In this Criminal Revision Petition, the order of the Executive First Class Magistrate, Kasaragod forfeiting the bond executed by revision petitioners in a proceeding under S.107 Cr. P.C., is challenged. 2. The District Collector and Additional District Magistrate, Cannanore initiated proceeding under S.107 Cr. P.C., against 46 persons including the petitioners 1 to 4 and by his order dated 511 '69, the petitioners 1 to 4 and others were directed to execute a bond for Rs. 2,000/- each with two solvent sureties for like amount under S.112 read with proviso to S.114 Cr. P.C. The said proceeding was later transferred to the file of the Executive First Class Magistrate, Kasaragod, who, pending enquiry, directed the revision petitioners 1 to 4 and others to enter into an interim bond to keep the peace for Rs. 500/-each with two solvent sureties for a like amount under S.117 (3) of the Criminal Procedure Code. While the said enquiry was pending, the Sub Inspector of Police, Bekal brought to the notice of the Executive First Class Magistrate by his reports dated 12-1-70 and 3-3-70 that the revision petitioners 1 to 4 committed a breach of the peace, in as much as the petitioners 1 and 2 involved themselves in offences under S.143,144, 447, 427,379 & 506 A read with S.149 IPC., in Crime Nos. 10/1970,11/1970 and 18/1970 and the petitioners 3 and 4 involved themselves for the offences under S.323 and 324 read with S.34 IPC., in Crime No. 183/69 of Bekal Police Station. On the basis of that report, the Executive First Class Magistrate summoned the revision petitioners 1 to 4 and in their presence the Sub Inspector was examined on oath on 20-4 -70 and their Advocate cross-examined the Sub Inspector. The revision petitioners 5 and 6 are the sureties, who also executed similar bonds for the like amount of Rs. 500/-. On the basis of that report, the Executive First Class Magistrate summoned the revision petitioners 1 to 4 and in their presence the Sub Inspector was examined on oath on 20-4 -70 and their Advocate cross-examined the Sub Inspector. The revision petitioners 5 and 6 are the sureties, who also executed similar bonds for the like amount of Rs. 500/-. On an appreciation of that evidence together with the reports of the Sub Inspector, the Executive First Class Magistrate passed the following order: "From the evidence placed before me and after hearing the advocate for the above counter petitioners, I am satisfied that by their above actions which have not been denied by them or rebutted in evidence before me, the above counter - petitioners have breached the conditions of the bond to keep the peace executed by them and their sureties, as laid down under S.121 Cr. P.C. Accordingly, I Shri U. Jayanarayanan. Executive First Class Magistrate, Kasaragod, hereby order under S.514 (i) Cr. P.C. that the bonds by the above counter-petitioners and their sureties stand forfeited to Government and the counter-petitioners are hereby asked to pay an amount of Rs. 500/- each being the penalty for having breached the conditions of the bond. The Counter-petitioners are also hereby asked to execute fresh bands to keep the peace for Rs. 2,900/-each with two solvent sureties for a like amount as per powers vested in me under S.514A Cr. P.C. They are also informed that if the fresh bond with sureties is not executed before 4 51970 further action for default under the Original Order dated 5111969 will be proceeded with. Given under my hand and seal of this court on this the 20th day of April 1970" 3. The learned counsel of the revision petitioners attack the above order. The first ground of attack was that the Executive First Class Magistrate did not comply with S.514 (1) read with S.121 Cr. P.C, in passing the order aforesaid. Given under my hand and seal of this court on this the 20th day of April 1970" 3. The learned counsel of the revision petitioners attack the above order. The first ground of attack was that the Executive First Class Magistrate did not comply with S.514 (1) read with S.121 Cr. P.C, in passing the order aforesaid. The relevant provisions of those those two sections are as follows: "S. 514(1): Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid." "Sec. 121: The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit, or the abetment of. any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond." 4. The first contention is that the Executive First Class Magistrate did not record any reason as to whether there had been any breach of the peace so as to conclude that the bond had been forfeited and as much as there was no compliance of S.514(1) read with S 121 Cr. P.C, it is contended that the order is vitiated by illegality. The second argument was that the order to furnish new bond for Rs. 2000/- is invalid as the terms of the new bond were not in accordance with the directions of the original bond and as such the order under S.514A Cr. P.C., calling upon the revision petitioners 1 to 4 to enter into a new bond is also vitiated by illegality and that, therefore, both the orders are liable to be set aside. 5. The bond, which is required to be taken under S.110 Cr. P.C.. from any person is to bind him to be of good behaviour, while the bond which is required to be taken under S.107 Cr. 5. The bond, which is required to be taken under S.110 Cr. P.C.. from any person is to bind him to be of good behaviour, while the bond which is required to be taken under S.107 Cr. P.C., from any person is to bind him to keep the peace. Therefore, S.121 Cr. P.C. lays down the terms in which the bonds have to be executed. The Section provides that bonds by persons with respect to whom an order requiring security is made under S.106 or S.118 Cr. P. C, shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case, the commission or the attempt to commit or the abetment of any offence punishable with imprisonment wherever it may be committed is a breach of bond. Accordingly, a bond for good behaviour is thus forfeited by the commission of any offence wherever it may be committed. But, in cases where security is taken and bonds are executed under S.107 Cr. P.C., to ensure that a particular person shall keep the peace, the position is otherwise; for, there the bond can be forfeited on the commission of an act involving the breach of the peace within the jurisdiction of the Magistrate taking the bond. It is also relevant to point out that the terms of the bond under S.107 Cr. P.C., are wholly different from the terms of the bond taken from persons under S.110 Cr. P.C. In this connection, the terms of the bond under S.107 may be seen. It is Form No. 10 of Schedule V of the Cr. It is also relevant to point out that the terms of the bond under S.107 Cr. P.C., are wholly different from the terms of the bond taken from persons under S.110 Cr. P.C. In this connection, the terms of the bond under S.107 may be seen. It is Form No. 10 of Schedule V of the Cr. P.C. The bond to keep the peace reads as follows: "Whereas I, (name), inhabitant of (place), have been called upon to enter into a bond to keep the peace for the term of or until the completion of the inquiry in the matter of now pending in the court of; I hereby bind myself not to commit a breach of the peace, or do any act that may probably occasion a breach of the peace, during the said term or until the completion of the said inquiry and, in case of my making default therein, I hereby bind myself to forfeit to Government the sum of rupees Dated this day of 119 (Signature.) It is in the said Form that the revision petitioners executed the interim bonds to the Executive First Class Magistrate by his order under S.117(3) Cr. P.C. 6. It is true that the latter part of S.121 Cr. P.C., which requires the commission or attempt to commit or the abetment of any offence punishable with imprisonment relates only to a bond, which is required to be taken for good behaviour. But, what is required to be vouchsafed under the bond in respect of the proceeding in S.107 Cr. P.C., is the keeping of the peace. So, a breach of the terms of the bond under S.107 Cr. P.C., would be proved if the person concerned committed any breach of peace. The breach of peace may be either by committing an offence or by other means, which will have a direct bearing to the peace and tranquillity of the place. So, if there is an instance of breach of the peace as regards the person who executed the bond in a proceeding under S.107 Cr. P.C., it is open to the Executive First Class Magistrate to proceed with under S.514 (1) Cr. P.C. That is exactly what the Executive First Class Magistrate had done in this case. 7. So, if there is an instance of breach of the peace as regards the person who executed the bond in a proceeding under S.107 Cr. P.C., it is open to the Executive First Class Magistrate to proceed with under S.514 (1) Cr. P.C. That is exactly what the Executive First Class Magistrate had done in this case. 7. It could not be said that the Executive First Class Magistrate passed the instant order before he conducted the proceeding under S.514 (1) Cr. P.C. On the other hand, it was seen that the Sub Inspector filed two reports against the petitioners 1 to 4 and thereafter on 20 4 -70 the Sub Inspector was examined on oath in the presence of the petitioners 1 to 4. The Advocate of the revision petitioners cross-examined him. The reports of the Sub Inspector showed that there was a breach of the peace by the revision petitioners 1 to 4. It is true that in the evidence of the Sub Inspector the words 'breach of the peace' were not mentioned. But, the reports as well as the evidence of the Sub Inspector showed that the revision petitioners 1 to 4 committed various offences which led to the irresistable conclusion that the revision petitioners 1 to 4 committed a breach of the peace. It was, therefore, in violation of the terms of the bond they executed to the Executive First Class Magistrate that they committed a breach of the peace. 8. The learned counsel has drawn my attention to a decision reported in Thakur Kishun Narayan Singh and others v Emperor, AIR. 1922 Patna 242. That was a case where the Magistrate forfeited the bond before the executants of the bond were called upon to show cause why the amount should not be paid. That order of the Magistrate was in violation of the provisions of S.514(1) Cr.P.C. That case has no application to the facts of the present case. Similarly, the case reported in Vol. XXXIII, The Criminal Law Journal (1922) 478, was also a case where the Magistrate called upon a person to show cause under S.514 Cr. P. C., merely on a Police report and the evidence was taken on oath after the order was issued. Similarly, the case reported in Vol. XXXIII, The Criminal Law Journal (1922) 478, was also a case where the Magistrate called upon a person to show cause under S.514 Cr. P. C., merely on a Police report and the evidence was taken on oath after the order was issued. In that case, it was held that the Magistrate acted without jurisdiction and, therefore, the proceedings must be set aside, even though the person concerned was not prejudiced, in any way, by the procedure adopted. Another case reported in Bubai Manjhi and others v. The State, AIR. 1958 Patna 286, also did not help the revision petitioners. That was a case where no evidence was taken by the Magistrate before an order forfeiting the bond was passed. It was pointed out in that decision that the use of the words "whenever it is proved" in S.514 makes it incumbent on the Magistrate to take evidence in order to afford a foundation for his jurisdiction to call on the party to show cause and to declare re-cognizance forfeited. So, it was held that taking and recording of evidence are essential and that when it was not done there was a failure of jurisdiction. Nothing of the kind happened in the present case. The learned Executive First Class Magistrate examined the Sub Inspector on oath and the Sub Inspector was also cross-examined. It was on a consideration of the evidence on record that the Executive First Class Magistrate held that he was satisfied that on account of the activities of the revision petitioners 1 to 4 they had breached the condition of the bond to keep the peace and, therefore, the bonds were liable to be forfeited. It could not be said that the attention of the Executive First Class Magistrate was not adverted to the provision of S.121 Cr. P. C., that there had been a breach of the peace. The order of the Executive First Class Magistrate was that there had been a breach of the peace on the part of the revision petitioners 1 to 4. That was sufficient compliance of the provisions of S.514 (1) read with S.121 Cr.P.C. I find that there had been no illegality or irregularity in the order passed in the instant case. The order of the Executive First Class Magistrate was that there had been a breach of the peace on the part of the revision petitioners 1 to 4. That was sufficient compliance of the provisions of S.514 (1) read with S.121 Cr.P.C. I find that there had been no illegality or irregularity in the order passed in the instant case. I may, however, point out that the attention of Executive First Class Magistrates in general may be invited to the necessity to record a finding if the bond to be forfeited is in respect of the provision of S.1C7 Cr. P. C., holding clearly that there occurred a breach of the peace for the bond to be forfeited and that the breach of the peace was due to some specific activity of the executant of the bond. 9. Even assuming that there has been an omission to record the reasons for the Magistrate being so satisfied in his order, it is held that it is a matter relating to procedure and not jurisdiction. That is the view expressed in Namdeo Chimnaji Patil Marathe and another v. Emperor, AIR. 1938 Nagpur 275. It reads as follows: "Further, before the case was registered, both the applicants bad been called up, and in the presence of one of them the Sub-Inspector was examined. These were evidently the grounds which satisfied the Magistrate, and the record of the Sub Inspector's statement may reasonably be taken to be the records of the grounds of proof. But, apart from this, I should hold that the jurisdiction of the Magistrate arises as soon as he is satisfied prima facie that the bond has been forfeited, and the omission to record the reasons for his being so satisfied is a matter relating to procedure and not to jurisdiction". 10. I am in respectful agreement with this view and therefore I am of the opinion that there has not been any illegality or irregularity in the order passed against the revision petitioners. It is seen from the proceeding that the original order of the District Collector was to furnish security to the tune of Rs. 2000/-by each of these persons. So, there could not be any violation of the provisions of S.514A in the instant case. The revision petitioners 1 to 4 were rightly directed to execute a bond for Rs. It is seen from the proceeding that the original order of the District Collector was to furnish security to the tune of Rs. 2000/-by each of these persons. So, there could not be any violation of the provisions of S.514A in the instant case. The revision petitioners 1 to 4 were rightly directed to execute a bond for Rs. 2000/- each on the terms and conditions of the former bond. There is, therefore, no violation of the provisions of S.514A or first proviso of S.118 Cr. P. C. 11. In this connection, I may point out that the learned Magistrate would have committed an error if he had forfeited in the first instance the bonds of revision petitioners 5 and 6, who were the sureties of revision petitioners 1 to 4. It is held in Chanda Singh v. Emperor AIR. 1940 Lahore 32, that it was the principal bond which was to be forfeited first; only if that cannot be realised is the surety liable under his bond. There is no evidence that in this case such a course was adopted by the Magistrate. Anyway, the principle set forth above may be followed in the instant case. 12. In the result, the revision petition fails and the same is dismissed.