Ganesh Prasad Sah v. Sadasiv Prasad — 1978 DIGILAW 124 (PAT)

Judgment Chaudhary Sia Saran Sinha, J. 1. This Criminal Revision is directed against an order by which the petitioners, four in number, have been bound down under section 118 of the Code of Criminal Procedure (hereinafter referred to as the code) and directed to execute a bond of Rs.1000/-with two sureties of like amount each for keeping peace for a period of one year and in default to undergo simple imprisonment for a period of one year each. 2. Plot No.1238 in Ward no.4 of Dumka Municipality is owned and possessed by Sadasiv Pd. (opposite-party) of this criminal revision Plot No.1239 of the said Municipality, which is said to bo a Municipal lane, separates plot no.1238 from plot no.1240 which belongs to the petitioners and which contains their house, petitioner no.1 being the father and the remaining the three petitioners being his sons. Plot no.1238 originally contained a mud built house and sometime in the year 1971 the opposite party Sadasiv Pd. wanted to raise a brick built house on the old side of mud built house. Tn fact the construction of the brick wall started but on 11.6.1971 the petitioners objected to the same, physically interfered and assaulted the masons and coolies. This led Sadasiv pd. (opposite-party) to file a petition before the Subdivisional Magistrate on 12.6.1971 for taking action against petitioners under section 107 of the Code. 3. The matter was referred to the police for enquiry and the police submitted a report. On considering that report by order dated 23.7.1971 and for reasons stated therein the Subdivisional Magistrate ordered for the drawing up of a proceeding under section 107 of the Code against the petitioners. The petitioners showed cause by filing a joint show cause denying the allegations made against them. 4. An enquiry was held and eight witnesses were examined on behalf-of the opposite-party. 5. No witness was examined on behalf of the petitioners. On a consideration of the materials on record by order dated 5.11.1973 the trying Magistrate passed an order binding down the petitioners in the manner stated above. 6. The petitioners took up the matter in appeal but the learned Additional, sessions Judge, Santhal Parganas, Dumka, dismissed the appeal and now the petitioners have taken the matter to this court. 7. Sri Ghosal, learned counsel for the petitioners, raised the following, contentions. 6. The petitioners took up the matter in appeal but the learned Additional, sessions Judge, Santhal Parganas, Dumka, dismissed the appeal and now the petitioners have taken the matter to this court. 7. Sri Ghosal, learned counsel for the petitioners, raised the following, contentions. The first contention was that there was no material before the magistrate to initiate a proceeding under section 107 of the Code and his order initiating the present proceeding was, therefore, illegal and without jurisdiction. The next contention was that the impugned order binding down the petitioners based, as it was, on matters occurring subsequent to the initiation of the proceedings, the impugned Order was bad in law. The. third contention, urged was that the both the two courts below not having considered the cases of each of the petitioners separately, the order binding them down stood vitiated. The next contention was that since this proceeding was initiated in the year 1971 and as a long time has elapsed thereafter, the proceeding is liable to be dropped. The fifth and the last contention was that the impugned order being. a composite order binding down the petitioners and directing them to execute bonds and at the same time ordering for their detention in default or execution of bond was bad in law and illegal. 8. The first contention raised by Mr. Ghosal is absolutely without" subs tance and it must fail. A Magistrate is competent to initiate a proceeding under section 107 of the Code if in his opinion there is sufficient ground for proceeding in the manner laid down in section 107 of the Code. Alleging certain overt acts on the part of the petitioners, the opposite party made in application to the subdivisional Magistrate. It was sent to the police for report. The police recommended for action against the petitioners. On a consideration of the police report the Magistrate felt satisfied about the likelihood of the breach of peace and disturbance of public tranquility and he, therefore, ordered for the drawing up of a proceeding under section 107 of the Code by order dated 28.6.1971. The satisfaction contemplated in section 107 of the Code is intended to be the subjective satisfaction of the Magistrate though, obviously, based on certain materials justifying the said satisfaction. The satisfaction contemplated in section 107 of the Code is intended to be the subjective satisfaction of the Magistrate though, obviously, based on certain materials justifying the said satisfaction. In the facts and circumstances of the case the Magistrate was justified in initiating the proceeding in question by order dated 28.6.1971. There is no merit in the first contention. 9. In the petition filed by the opposite party for initiation a proceeding under section 107 of the Code, the overt acts alleged on the part of the petitioners were said to have been committed on 11.6.1971. Evidence was, however, led by the opposite party regarding subsequent conduct of the petitioners on 29.10.1971, 23.6.1972, 17.8.1972 and 18.8.1972. The contention of Sri ghosal was that the allegations of subsequent conduct not having been incorporated in the order-sheet, the Magistrate was not justified in binding down the petitioners on the evidence regarding these subsequent conduct. The decision of this court in the case of Shiblal Paswan and others V/s. State of Biharand another reported in AIR 1962 Patna 369 was relied upon by Sri Ghosal in support of his contention. It was held in this case that if any evidence of consequent conduct or event is given it should be incorporated in a supplementary order under section 112 of the Code or when no such order is made and evidence has been allowed to be given, the accused must have an opportunity to meet the same. Although there is nothing on the record to show whether any order was recorded in the order-sheet regarding the subsequent events, it is undisputed that evidence was led regarding them without any objection from the petitioners and the petitioners had opportunity to cross-examine the relevant witnesses and to meet them. In such circumstances the impugned order, which takes into consideration the sabsequent events also, cannot be held to be bad in law. The findings of the trying Magistrate, inter alia was that he was satisfied that repeated troubles had been committed by the members of the opposite party and that there still existed apprehension of breach of the peace. There is almost similar finding of the Additional District and Sessions Judge in the last sentence of paragraph 21 of his order. This contention too has, thus, no merit. 10. There is almost similar finding of the Additional District and Sessions Judge in the last sentence of paragraph 21 of his order. This contention too has, thus, no merit. 10. It was next urged that individual cases of the petitiomers not having been considered separately, the impugned order stood vitiated. Two decisions were relied upon by Sri Ghosal in support of this contention ; the first reported in AIR 1943 Patna 417 (Sajan Sahu and others V/s. Emperor) and the other reported in AIR 1959 Patna 304 (Jangi Gope V/s. State through Ramsakal Singh), before discussing these two decisions the facts of this case have to be clearly borne in mind. The petitioners are related as father and sons. They are joint owners of plot no.1240 which contain their house. Plot no.1238 is intervened from plot no.1240 only by a Gali recorded as plot no.1239. The allegations made against the petitioners in the petition filed by Sadasiv Pd. on 12.6.1971 are similar. Paragraph 8 of the petition stated, inter alia, that the said opposite party, referring to the four petitioners, suddenly got furious and assaulted the said masons and coolies by pushing them and also trespassed over the wall of the house of the opposite party and damaged a portion of the centering and filthily abused him and threatened that they would demolish the centering of the roof of his house. The hurling of abuses, unlawful obstruction and indulging in vandalism and gondaism are also common in respect of all the petitioners. Thus according to the petition filed by the opposite party allegations against the petitioners are similar in nature. The defence put forward by the petitioners are also common as contained in their joint show cause, the main submission therein being the denial of the allegations. Even the contest offered by the petitioners appears to be common. While dealing with the evidence of the witnesses for the opposite party both the courts have mads reference to the allegations against all the petitioners of this case. The facts of the case reported in 1943 Patna 417 are distinct and different from the facts of the instant case. In that case trouble arose between two parties and the Magistrate initiated 107 proceeding against both of them. The Magistrate also proceeded to dispose of the cases of both parties in the same proceeding. The facts of the case reported in 1943 Patna 417 are distinct and different from the facts of the instant case. In that case trouble arose between two parties and the Magistrate initiated 107 proceeding against both of them. The Magistrate also proceeded to dispose of the cases of both parties in the same proceeding. The five persons of first pasty and eight persons of the second party were all called upon to show cause and joint enquiry in respect of both the parties was held and members of both the parties were bound down. It was in these circumstances that his Lordship held that joint enquiry in respect of the allegations against both the parties cannot be held in one proceeding. In the instant case it was only the petitioners who were proceeded against under section 107 of the Code. It was further found in that case that neither the learned Magistrate nor the Sessions Judge had anywhere in their Judgments dealt with the cases of the individual accused and summarised the evidence against each and it was impossible to know what was working in the minds of these courts, and whether they were influenced by statements elicited in cross-examination or not. In the facts and circumstances of that case his lordships held that even apart from the irregularity, not to put it stronger, of the joint proceeding. I should have felt myself bound to set aside the orders in this case merely because of the fact that the cases of individual persons have not received separate consideration. In the case of Jangi Gope and others V/s. State through Ramsakal Singh (supra) the decision of this court reported in air 1943 Patna 417, referred to above was relied upon which may imply similarity of the facts of the two cases and it was held that wherein a proceeding under section 107 of the Code cases of individual person has not been separately considered and the evidence against each person has not been summarised the order under section 107 cannot be sustained and must be set aside. In the instant case the evidence led against the petitioners have been duly considered and summarised though not individually, for the simple reason that the evidence against each of them was similar. In the instant case the evidence led against the petitioners have been duly considered and summarised though not individually, for the simple reason that the evidence against each of them was similar. The question is whether in a case where more than one person belonging to the party or group, is being proceeded against, is it always necessary for the Magistrate to discuss the case of each of them individually even if the allegation against them, their defence and the evidence adduced is similar. The only purpose of separate discussion as emphasised in air 1943 Patna 417 was to know as to what was working in the minds of the courts below and whether they were influenced by statements elicited in cross examination or not. There is no scope for any such difficulty in a case like the instant one. It was not the contention of Sri Ghosal that the joint discussion of the evidence in any way prejudiced any of the petitioners. In fact the learned counsel for the opposite party took me through the petition filed by the petitioners, the joint show cause filed by them as also the evidence of some of the witnesses and it appears to me that in the facts and circumstances of the instant case, the discussion of the case of each and every petitioners, separately, would have been a sheer waste of time without any advantage to any of them. At least it is quite clear that the joint discussion of the evidence against these petitioners has not in any way prejudicially affected any of them. This contention must, therefore, also fail. 11. The next contention was that the proceeding having been initiated in 1971, it must be dropped now as we are in the year 1978. The order of the trial court dated 5.11.1973 specifically states about the existence of the apprehension of breach of peace even till then. Even the Additional District Judge in his judgment dated 12.8.1977 has observed in paragraph 21 as follows : "so from the evidence of the above witnesses as well as from the aforesaid station diary entries it is clear that there was apprehension of breach of peace and again the appellants had interferred several times in the construction of the house of the respondent petitioner. " The submission of Sri Ghosal was that the construction of the house on plot no.1238 was complete. " The submission of Sri Ghosal was that the construction of the house on plot no.1238 was complete. That might be so but the submission of the learned counsel for the other side was that even after the proceeding under section 107 of the code, the parties were fighting the second round of battle, this time with respect to use of the gali (lane) situated in plot no.1239 leading to an order under section 123 of the Code, which order on behalf challenged, is pending in this court in Cr. Misc.1481 of 1977. In the facts and circumstances of this case, the contention raised by Sri Ghosal cannot be accepted and it must be negatived. 12 The last contention of Sri Ghosal must, however, succeed and the learned counsel for the other side readily conceded to the same. The Magistrate, while binding down all the petitioners passed a composite order demanding execution of bond by them by 12.11.1973 and by the same order, the petitioners were ordered to undergo simple imprisonment for one year, in default. Imprisonment under section 123 of the Code cannot be ordered in anticipation of default being made in the furnishing of the required security. It can only follow a failure to furnish security. The latter part of the order directing the petitioner at that stage to undergo simple imprisonment for one year in default is obviously illegal and it is accordingly set aside. On the failure of the petitioners or any of them to furnish the bonds within a reasonable time to be fixed by the magistrate, he will be at liberty to proceed against the petitioner in accordance with law. Thus while the impugned order so far as it directs simple imprisonment for one year, in default, is set aside, the order binding down the petitioners and execution of bonds by them as ordered is confirmed. The Criminal Revision is disposed of accordingly. Revision partly allowed.