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Rajasthan High Court · body

1970 DIGILAW 152 (RAJ)

Roshan Singh v. Ramu

1970-08-03

MEHTA

body1970
MEHTA, J.-It appears that party No. 1 Ramu submitted an application to to the Court of the Sub-Divisional Magistrate, Parbatsar, under secs.107/117, Criminal Procedure Code, against Roshan Singh and others, party No. 2. The applicant averred that party No. 2 was interfering with his right of possession over his land (Khasra No. 147/1), situate in village Lichana and that there was likelihood of breach of the peace or disturbance in the public tranquillity. On receipt of the above-application the Sub Divisional Magistrate, Parbatsar, felt that there was sufficient ground for taking proceedings under S. 107, Cr. P. C , and required party No. 2 to show cause why they should not be ordered to execute bonds with sureties for keeping peace for a period of one year in a sum of Rs. 1000/-, each. At the same time the Magistrate ordered that pending the completion of the inquiry under sub-s. (1) of S. 117, it was necessary to take immediate measures for the prevention of breach of the peace or disturbance of the public tranquillity and directed party No. 2 to execute ad-interim bonds with sureties in a sum of Rs. 1000/-, each, for keeping the peace until the conclusion of inquiry. 2. Party No 2 felt aggrieved against the order passed under Sec. 117(3), Cr. P. C and approached the learned Sessions Judge, Merta, through a revision-petition, urging that the court of the Sub Divisional Magistrate, Parbatsar. should not have proceeded under S. 117(3), Cr. P. C , without first complying with the provisions of S. 112, read with S. 113, Cr. P. C. The learned Sessions Judge agreed with that submission and has submitted this reference for the aforesaid purpose. 3. S. 112, Cr.P.C.reads as follows:- "When a Magistrate acting under sec. 107, sec 108, sec. 109, or sec. 110, 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." Sec. 117(3), Cr. P. C, is in the terms following:— "Pending the completion of the inquiry under sub-sec. P. C, is in the terms following:— "Pending the completion of the inquiry under sub-sec. (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 under sec. 112 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." From the above provisions, it is manifest that no person can be asked to execute any interim bond under sub-section (3) of S. 117, Cr.P.C. without first complying with the requirements of Ss. 112 and 117(i), Cr.P.C. In a proceeding under S. 107, Criminal Procedure Code, procedure to be adopted is laid down in sec. 112 to 118. Whenever proceedings under S. 107 are contemplated against any person, proceedings are to be initiated by first issuing a notice under S. 112, Cr.P.C. and serving it on that person in accordance with the provisions of S. 113 or S. 114, Cr. P.C. Sub-S. (3) of S.117, would come into play only on the commencement of the inquiry, i.e., after complying with the provisions of sub-section (i). No interim order can be passed under S. 117(3) along with an order under S. 112, Criminal Procedure Code. 4. An order under sub-section (3) of S. 117 is not a mere matter of routine to be appended to an order under S. 112, Cr.P.C. A composite order drawing up proceedings under S. 107 and calling upon party concerned to execute a bond with or without surety is not in consonance with law. In other words, an order under S. 112 must precede any step taken under S. 117. where the Magistrate gives an order under S. 112 and at the same time below that order he simultaneously passes an order under S. 117(3), it cannot be said that the latter order was passed after passing an order under S. 112, Cr. In other words, an order under S. 112 must precede any step taken under S. 117. where the Magistrate gives an order under S. 112 and at the same time below that order he simultaneously passes an order under S. 117(3), it cannot be said that the latter order was passed after passing an order under S. 112, Cr. P. G. An order under S. 117(3) can be made only on the commencement of inquiry and such an inquiry would begin when the person sought to be proceeded against puts in appearance before the court to answer the charge against him. An order passed u/s. 117(3) without reading or explaining the order u/s. 112 or S. 113 to the party concerned, as given in sub-sec. (1) of S. 117, Cr.P.C., would be premature : (see Rame Gowda vs. State of Mysore (1), and Jangir Singh vs. State(2). If the person concerned is not present in the court at the time when order u/s. 112 is passed, then the Magistrate can proceed u/s. 114 and 115 and summons or warrant should be issued and the same should be accompanied with the order passed under S. 112. A Magistrate may, under the proviso to S. 114, Cr.P.C., order the immediate arrest of the person concerned against whom an order under S. 112, is made. But before such an exceptional measure is taken, the Magistrate must first be satisfied that breach of the peace was likely to be committed and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person. He must record an order in writing showing his satisfaction for the step taken under the proviso. Thereafter on the appearance of the person or persons inquiry in accordance with the provisions of S. 117, Cr.P.C. can be proceeded with. 5. As a result of the above discussion, it is plain that the order of Sub-Divisional Magistrate, Parbatsar, dated June 16, 1969, calling upon party No. 2 to execute interim bonds, without first complying with the provisions of S. 112 and 117(1), Cr. PC is illegal. I, therefore, accept the reference submitted by the Sessions Judge, Merta, and quash the impugned order.