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1973 DIGILAW 141 (PAT)

Nokha Singh v. Parvati Kuer

1973-08-06

K.B.N.SINGH, S.N.P.SINGH

body1973
JUDGEMENT K.B.N. Singh, J. 1. This application in revision has been flied for setting aside an order dated the 6th June, 1972, of the Magistrate, First Class, Dinapore, directing the petitioners to execute an interim bond of Rs. 1500/- (corrected vide order no. 12 dated 7.12.1973, Sd/ U.N, Dutta, 7.12.1973) each with two sureties of the like amount, for maintaining peace during the pendency of a proceeding under Section 107 of the Code of Criminal Procedure (hereinafter referred to as the Code). The petitioners were the second party and the opposite party the first party in that proceeding. 2. On the 19th February, 1972, the Sub-divisional Magistrate of Danapur drew up a proceeding under Section 107 of the Code against the petitioners on the basis of a police report that there was a serious apprehension of a breach of the peace at the hands of the petitioners. In pursuance of the notice to show cause, the petitioners appeared on the 17th March, 1972 and prayed for time for filing their show cause, and the case was adjourned to the 28th March, 1972 for filing their show cause. On that very day, the opposite party filed a petition praying for directing the petitioners to execute interim bonds, which was referred to the Bikram police for inquiry and report. On the 28th March, 1972, the petitioners filed their show cause. Thereafter, on two dates (i.e., on the 22nd April, 1972, & the 17th May, 1972) nothing substantial seems to have been done in the proceeding, on account of absence of one or the other of the petitioners. On the 26th May, 1972, the petitioners appeared and the police report recommending for an action under Section 117 (3) of the Code against the petitioners was also received. The police reported that the petitioners aggressive attitude had crossed all limits and the allegation of the opposite party that there was danger to their lives at the instance of the petitioners was correct. After hearing the parties and considering the police report, the impugned order was passed. 3. Shree Ram Suresh Roy, learned Counsel appearing on behalf of the petitioners, has urged that the learned Magistrate has acted illegally in postponing the inquiry under Section 117 (i) of the Code and in the meantime asking the petitioners to execute interim bonds. After hearing the parties and considering the police report, the impugned order was passed. 3. Shree Ram Suresh Roy, learned Counsel appearing on behalf of the petitioners, has urged that the learned Magistrate has acted illegally in postponing the inquiry under Section 117 (i) of the Code and in the meantime asking the petitioners to execute interim bonds. He has urged that the inquiry under Section 117 (1) of the Code will be deemed to commence only when witnesses are examined and the learned Magistrate could not ask the petitioners to execute interim bonds without ascertaining the truth of the allegation, by examining the persons making the allegation or the police officer, and reliance in this connection is placed on the case of Madhu Limaye vs. Ved Murti and others A.I.R. 1971 S.C. 2481. It has been submitted that the decision of a Bench of this Court in the case of Jagdish Prasad vs. The State of Bihar A.I.R. 1957 Pat. 106 stands overruled as a result of the above Supreme Court decision. 4. Learned Counsel has submitted that the decision of the Supreme Court in Madhu Limaye's case will fully apply to the facts of the present case in as much as after the petitioners appeared and filed their show cause, the learned Magistrate adjourned the proceeding on two dates and instead of concluding the proceeding he has taken the harsh step of asking the petitioners to execute interim bonds on the 6th June, 1972. He has placed reliance on the observation of their Lordships of the Supreme Court in paragraphs 13 and 16 of the judgment, which read thus: "13. It will be noticed that before the Magistrate took action to call for an interim bond, he did not make any efforts to enquire into the truth of the information as is required by Section 117 (3) of the Code. He only saw the Police report and was satisfied from it, without even questioning the Sub Inspector. He did question him with regard to Narender Shastri who is described in the Order as O.P. No.3, but not others. It is also to be noticed that the case was fixed on the following day for statements of Madhu Limaye and Ram Adhar Giri and there is no mention that any witnesses were to be present. He did question him with regard to Narender Shastri who is described in the Order as O.P. No.3, but not others. It is also to be noticed that the case was fixed on the following day for statements of Madhu Limaye and Ram Adhar Giri and there is no mention that any witnesses were to be present. In fact even on the next day the "Magistrate was not going to try the case but only take statements from the petitioners." The relevant portion of paragraph 16 of the judgment reads thus: "16. It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry' postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear nobody and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan or Ved Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. Therefore, the proceedings for asking for an interim bond were completely illegal" The observations in Madhu Limaye's case have to be understood in the context in which they were made. 5. In the above case, it appears that on the 9th August. 1970, a proceeding under Section 107 of the Code was drawn up by the City Magistrate, Varanashi, against Madhu Limaye and Ramadhar Giri. A show cause notice under Section 112 of the Code, calling upon them to furnish security in the sum of Rs. 5,000/- with two sureties of the like amount for keeping peace was read out to them. They refused to accept the notice and sign the order-sheet in token thereof. The learned Magistrate adjourned the case to the following day and remanded them to jail custody as they declined to offer bail. 5,000/- with two sureties of the like amount for keeping peace was read out to them. They refused to accept the notice and sign the order-sheet in token thereof. The learned Magistrate adjourned the case to the following day and remanded them to jail custody as they declined to offer bail. No proceeding was drawn up against Narendra Shashtri, who was also arrested and produced before the Magistrate along with them. On the 10th August, 1970, the case was again adjourned to the 17th August, 1970. Thereafter the case stood adjourned as Madhu Limaye in the mean time had moved the Supreme Court. As the remand order was not extended by the learned Magistrate, Madhu Limaye and Ramadhar Giri became free from the custody. 6. From the report as also from the blue print, of the judgment it does not appear as to on which date exactly Madhu Limaye and Ramadhar Giri were asked to execute interim bond. On the particular facts of that case, the Supreme Court came to the conclusion that the Magistrate used the power under section 117 (3) of the Code before the stage of inquiry under clause (1) of Section 117 was reached. It has been emphasised in paragraph 12 of the judgment that after drawing up a proceeding under section 107 on the 9th August. 1970, the City Magistrate, Varanashi, fixed 10th of August, 1970, for statement of Madhu Limaye and Ramadhar Giri only. On the 10th of August, 1970, the Officer-in-Charge, Varanashi Cantonment Police Station, sent a report to the court that the programme of causing destruction and land grabbing was being carried on by the Sanyukt Socialist Party in the town and its rural areas, and there was apprehension of great disturbance, if the case was taken up in court and prayed that the court proceedings be held in jail, so that situation may remain under control. The learned Magistrate ordered this petition to be kept on file, and as he was too busy it was not possible for him to take up the proceeding in Jail, he adjourned the case to the 17th August, 1970. Their Lordship3 emphasised that "Again there was no order to keep the witness ready on the 17th" August, 1970. The learned Magistrate ordered this petition to be kept on file, and as he was too busy it was not possible for him to take up the proceeding in Jail, he adjourned the case to the 17th August, 1970. Their Lordship3 emphasised that "Again there was no order to keep the witness ready on the 17th" August, 1970. As Madhu Limaye and Ramadhar Giri refused to accept notice and the date "10th of August, 1970" was only for the statement of Madhu Limaye and Ramadhar Giri, which was adjourned to the 17th August, 1970, it was obvious that no date for inquiry under Section 117 (1) of the Code was fixed. It was in this context that it has been held that the stage of inquiry under Section 117 (1) had not been reached as there was nothing to indicate from the order that the Magistrate proposed to proceed under Section 117 (1) of the Code, The observation of their Lordships of Supreme Court in paragraphs 13 and 16, relied upon by learned Counsel for the petitioners, therefore, clearly relate to a situation where interim bond is demanded even before the stage of inquiry under Section 117 (1) has reached. The question of examining police officer or examining some witnesses before the interim bond was taken also relates to that situation. This will be clear from the following observations of their Lordships in paragraph 15 of the judgment. "It appears, therefore, that the Magistrate used the powers under Section 117 (3) without commencing to enquire into the truth of the information, No sworn statement of any kind was obtained by him and he adjourned the cases for the examination of the petitioners without summoning the witnesses in support of the information. He, however, asked the petitioners to furnish an interim bond or go to Jail." It is thus apparent that the Supreme Court decision has no application to the facts of the present case, in which, after notice to show cause, as required under Section 112 of the Code, was served on the petitioners they appeared and filed show cause and on the subsequent dates the proceeding had to be adjourned for absence of the petitioners. The petition for interim bond filed by the opposite party was sent for enquiry to the police and on receipt of the police report and after hearing the parties and considering the documents filed by them, the order for interim bond has been passed, Madhu Limaye's Case nowhere lays down that even after the stage for Section 117 (1) is reached it is necessary to examine the police officer or the person at whose instance order for interim bond is sought to be made. 7. Section 117 (1) of the Code reads thus:– "Inquiry as to truth of information (1) When an order under section 112 has been read or explained under Section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under Section 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such evidence as may appear necessary." Sub-section (2) of Section 117 lays down that such inquiries are trials and the procedure applicable to trials in summons cases is to be followed. Sub-section (3) authorises the Magistrate to ask for any interim bond with or without sureties to be of good behavior pending the completion of the inquiry, "if he considers that immediate measures are necessary for the prevention of a breach of the peace" for reasons to be recorded in writing. The procedure for summons cases, which is to be applicable in inquiries under Section 117 (1) is laid down in Chapter XX of the Code, and Section 242, which is relevant for our consideration, reads thus:– "When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall be necessary to frame a formal charge." Therefore, when the person proceeded against appears in court in pursuance of the notice under Section 112, as in the instant case, the stage of Section 117 is reached. Section 117 (1) does not lay down that inquiry does not commence unless a witness has been examined or the person proceeded against has been further interrogated, as urged by Mr. Roy. Section 117 (1) does not lay down that inquiry does not commence unless a witness has been examined or the person proceeded against has been further interrogated, as urged by Mr. Roy. It may be adjourned for the absence of parties proceeded against or for similar reasons but nevertheless the stage as contemplated under Section 117 (1) of the Code begins. The postponement of the proceedings on a few occasions will not vitiate the order in question and the Supreme Court does not lay down any such proposition of law that the proceeding under Section 107 cannot be postponed for valid reasons. The question whether adjournment of the proceeding was proper or not will depend on the facts of each case and no hard and fast rule can be laid down in that regard. The position in this regard has been fully explained in a Bench decision of this Court in the case of Jagdish Prasad Verma and others vs. The State of Bihar AIR, 1957 Pat 106 a portion of which may usefully be quoted here: – "The enquiry as to the truth of the information upon which action has been taken starts after the order under Section 112 has been read over and explained under Section 113 to person present in Court or when any such person appears or is brought before the Magistrate in compliance with or in execution of a summons or warrant issued under Section 114. When proceeding to enquire into the truth of the information under Section 117, subsection (1), Magistrate is empowered to take such further evidence as may appear to him to be necessary." The contention of the learned Counsel for the petitioners that the Bench decision of this Court stands over-ruled on account of the decision in Madhu Limaye's case is not correct. This submission overlooks the decision in the main case of Madhu Limaye A.I.R. 1971 SC 2486 in which the questions of vires of Chapter VIII, Part IV, of the Code dealing with proceedings under 107, were gone into. It appears from paragraph 42 of the aforesaid decision that the aforesaid Bench decision of this Court (A.I.R. 1957 Patna 106) has been approved. 8. It will be relevant to refer to the case of Jallaluddin Kanju vs. The State Bihar AIR, 1952 Tr Co 262 which has also been approved by the Supreme Court. It appears from paragraph 42 of the aforesaid decision that the aforesaid Bench decision of this Court (A.I.R. 1957 Patna 106) has been approved. 8. It will be relevant to refer to the case of Jallaluddin Kanju vs. The State Bihar AIR, 1952 Tr Co 262 which has also been approved by the Supreme Court. The relevant portion from the said decision reads thus: "The question is when the enquiry contemplated under section 113 (1) of the Travancore Criminal Procedure Code, which corresponds to Section 117(1) of the Code, can be said to commence. The argument raised by the learned Public Prosecutor and the learned Counsel for the petitioner in the Court below is that the enquiry should be considered to commence at least when the persons sought to be proceeded against are brought or appear before the Court to answer the charge against them. According to them when the counter-petitioners to a proceeding under Chapter VIII are so before the Court the stage is set for the enquiry and the fact that due to the exigencies of the work of the Court the case has to be adjourned from time to time would not mean the enquiry has not become yet one pending before the Court. This appears to me to be a common sense interpretation of the provisions in Section 113(1) and (3)." 9. Shree Roy for the petitioners has urged that in another proceeding under Section 107 of the Code between the same parties, the petitioners have been directed to execute interim bonds. A second order for interim bond in the other proceeding between the same parties should not be allowed to stand therefore the impugned order should be set aside. The learned Counsel, in this connection, has relied on a supplementary affidavit filed on behalf of the petitioners that in Case No. 536 M of 1970, on the 10th October, 1972, all the four petitioners have executed interim bonds. This order of interim bond is subsequent to the one, which is the subject matter of the present revision application. If the petitioners had any grievance against the second order of interim bond, they should have agitated this question before the court which passed the latter order and not in this revision application. 10. In the result, I find no merit in this revision application and it is accordingly dismissed. I agree. Application dismissed.