Surendra Singh v. Birendra Kumar Singh — 1978 DIGILAW 13 (PAT)

Judgment Shiveshwar Prasad Sinha, J. 1. This matter has been referred to Divisi on bench by a learned Single Judge by his order dated 12th October, 1977. 2. The petition is for quashing the proceeding under section 107 of the code of Criminal Procedure, 1973, (hereinafter referred to as the Code), drawn up by order dated 18th July, 1977 and also for quashing the order dated 11th august, 1977 by which the petitioners have been asked to execute ad interim bond under section 116 (3) of the Code. The petitioners are the second party to the said proceeding under section 107 of the Code. 3. The relevant facts are that there is a Private Limited Company known by the name of M/s. Veena Theatre Private Limited having its registered office at patna. The petitioners as also opposite-party no.1 are the shareholders of the said company. Opposite-party no.2 is one of the employees of the company. It appears that a tussle is going on between the shareholders for taking over the management of the campany, opposite-party no.1 has filed a civil suit and also an application for injunction to stop the other party from removing him from the post of Managing Director of the Company. 4. On 2nd July, 1977 as also on 4th July, 1977 opposite-party no.2, digamber Chaudhary, lodged, a sanha at Police Station Kotwali, Patna making several allegations of high-handed behaviour by the petitioners (Member of the second party ). The police on making enquiry to the allegations submitted a report to the Sub-divisional Magistrate, Sadar, Patna, who passed an order on the 8th July, 1977 for issue of notice to both the parties to show cause as to why proceedings under section 107 of the Code should not be drawn against them. The parties were asked to show cause by the 13th July, 1977. It appears that in pursuance of the said notice both the parties filed show cause and were also heard. The Sub-divisional Magistrate then passed an order in terms of section 111 of the Code, on the 18th July, 1977 initiating proceedings under section 107 of the Code and calling upon both the parties to show cause as to why they should not execute ad interim bond in terms of section (3) of the Code of Rs.1,000 each for keeping peace for a period of one year. 5. 5. The substance of information mentioned in the said notice was that the members of the second party were giving various types of threats to the members of the first party, such as exploding bombs in the premises of the Veena Cinema, a business run by the said company. It had also transpired that a man had been recently murdered within the presincts of the said cinema house and that there was good deal of tension between the parties for capturing or retaining the management of the company. For these reasons it appeared to the learned magihtrate that a serious tension was there, threatening breach of the peace between the parties. 6. Both the parties were asked to show cause by the 23rd of July, 1977. In the meantime a police report was also received by the learned Sub-divisional magistrate for action under section 116 (3) against the members of the second party. In pursuance of the said notice both the parties filed their show cause and they were heard. Each party tried to justify his action on the ground of being legally entitled to conduct the management of the company. Each party complained that the other had no locus standi to manage the compan y. The petitioners, namely, the members of the second party, however, submitted that in absence of any fresh material to prove any emergency, no action under section 116 (3) of the Code was warranted against their party. 7. The learned Sub-divisional Magistrate, after perusing the cause shown by the parties and after hearing them, passed an order dated 11th August, 1977 calling upon the members of the second party to execute no interim bond of rs.1,000 each for maintaining peace "till the final order is passed in the main proceeding under section 107 Cr. P. C. " 8. The second party being aggrieved by the order dated 18th July, 1977 drawing up proceeding under section 107 of the Code also against the order dated 11th August, 1977 calling upon them to execute ad interim bonds moved this Court against them. The matter was heard by a learned Judge, who, by his order dated the 13th October, 1977, has referred it to Division Bench. 9. The matter was heard by a learned Judge, who, by his order dated the 13th October, 1977, has referred it to Division Bench. 9. It appears that one of the grounds on which the proceedings under section 107 of the Code was challenged before him, was that unless the Magistrate was satisfied that the parties proceeded against wore likely to do any wrongful act which may occasion broach of tho peace of disturb the public tranquility, such a proceeding could not be initiated. The ground on which the direction to exocute ad interim bond under section 116 (3) of the Code was challenged was that the proceeding under section 116 (1) of the Code had not commenced and, therefore, such an order was wholly without jurisdiction. 10. Mr. Prasad appearing for the petitioners has challenged the initiation of tho proceedings under section 107 of the Code firstly, on the ground of vagueness of the substance of information, secondly, on she ground that tho petitioners being lawful owners of Veena Theatre, any action taken by them towards obtaining its ownership could not be a wrongful act on their part and, therefore, no proceeding, much less a proceeding under section 107 of the Code could be taken against them for such action. 11. The ground of vagueness of the substance of information has no merit for the simple reason that each party has shown cause and has even been heard on tho cause shown by each. Necessarily it means that each party undcrstood what they were required to explain, which further means that the substance of information was not vague. 12. Similarly, there is no merit in the other part of his contention. 13. There can be no two opinions on the point that a proceeding under section 107 of the Code is required to be initiated only where the breach of the peace is likely to be occasioned on account of a wrongful act on the part of the one or the other party to the proceeding. To quote one of the instances, which learned counsel for the petitioner himself suggested. If a person wants to enter into a house which is admittedly in his possession, be cannot be said to commit a wrongful act if he pushes away persons trying to obstruct him from entering into his house. To quote one of the instances, which learned counsel for the petitioner himself suggested. If a person wants to enter into a house which is admittedly in his possession, be cannot be said to commit a wrongful act if he pushes away persons trying to obstruct him from entering into his house. If a breach of peace is threatened on that account, the person to be bound down would not be the one who is rightfully entitled to enter into the house, but the one who has committed wrongful act in prohibiting the person in the exercise of his legal right. 14. In the instant case, however, the aforesaid analogy will not hold good. Both the parties claim to be acting in exercise of their right, which each one of them claims to be lawful. As to who is in the right or who is in the wrong, is a question of fact which will have to be decided on the evidence. It cannot be decided here in this proceeding. This much, however, is certain that one of them must be in the wrong. Necessarily, therefore, it follows that when a breach of peace is likely to be committed by both the parties trying to use force or threats to oust the other, such breach of the peace requires to be prevented by taking preventive action under section 107 of the Code. 15. It is next contended that the notice dated 18th July, 1977 intiating the proceeding under section 107 of the Code was bad because of its being a composite notice ; both, initiating a proceeding under section 107 of the Code as also calling upon the parties to show cause as to why they should not execute an ad interim bond in terms of section 116 (3) of the Code. 16. I do not think this argument has any merit, because the notice initiating the proceeding under section 107 of the Code is clearly severable from the notice trailing upon the parties to show cause against the action under section 116 (3) of the Code. Where such is the position, the notice as a whole does not become bad. 17. It must, therefore, be held that the petitioners have not been able to make out a case for quashing the proceeding under section 107 of the Code initiated by order dated 18th July, 1977. Where such is the position, the notice as a whole does not become bad. 17. It must, therefore, be held that the petitioners have not been able to make out a case for quashing the proceeding under section 107 of the Code initiated by order dated 18th July, 1977. Coming now to the order dated 11th august, 1977, by which the. petitioners have been called upon to execute interim bond in terms of section 116 (3) of the Code, the short argument on behalf of the petitioners is that the stage had not yet reached for passing such an order inasmuch as the inquiry envisaged under section 116 (1) of the Code had not commenced. 18. According to the learned counsel for the petitioners such stage commences only after the Magistrate proceeds to inquire into the truth of the information, after its substance has been served on the person concerned and such person has appeared or is brought before him. 19. In the instant case it is submitted, although the parties have appeard, the Magistrate has not proceeded to enquire into the truth of the information, but only as to who should be asked to execute ad interim bond. The order was, therefore, premature. 20. A series of decisions has been cited in support of the contention. In fact, it appears from the order referring this case to a Division Bench that it appeared to the learned single Judge that there was some conflict between some of the decisions cited. Be that as it may, the decisions cited are these : - (i) Jagdish Prasad Vernna and others V/s. the State, (AIR 1957 Pat.106 ). (ii) Jallahiddin Kunju v, State, (AIR 1952 Trav-Cochin 262 ). (in) Madhu Limaya and another V/s. Ved Mnrti and others, ( AIR 1971 sc 2481 ). (iv) Nokha Singh and others V/s. Parvati Kuer and another, ( 1974 BBCJ 460 ). (v) Nathan Yadav and others v The State of Bihar and others ( 1977 bbcj 357 ). The first four mentioned decisions are of cases under the old Code, the last one is in respect of a case under the new Code. But this is immaterial in view of the identical nature of the relevant provisions in the two Codes. (v) Nathan Yadav and others v The State of Bihar and others ( 1977 bbcj 357 ). The first four mentioned decisions are of cases under the old Code, the last one is in respect of a case under the new Code. But this is immaterial in view of the identical nature of the relevant provisions in the two Codes. All the five case-laws deal with the question as to when does the inquiry envisaged under section 116 (1) of the now Code (section 117 (1) of the old Code) commence. On the basis of these decisions, it has been urged that taking the view expressed in either of the decisions, the proceeding cannot be said to have commenced in the instant sase. 21. I will briefly relate the decisions in each of the above cases : 22. The Supreme Court in the case of Madhu Limaya and another V/s. Ved murti and others, ( AIR 1971 SC 2481 ) has observed that inquiry is commenced when the Magistrate starts inquiry into the truth of the information. 23. In this case, the Magistrate took action under section 117 (3) of the code of Criminal Procedure, 1898 merely on the basis of the police report, even questioning the Sub-Inspector or even examining the persons, who had reported about the overt acts indulged in by a political party led by the petitioner, which was likely to cause breach of the peace. Their Lordships, therefore, held that the Magistrate has used the powers under section 117 (3) (old Code) against the petitioner without commencing to inquire into the truth of the information. Their Lordships, while allowing the petition observed that "no sworn statement of any kind was obtained by him and he adjourned the case fo r examination of the petitioners without summoning the witnesses in support of the information". 24. Relying upon the aforesaid observations of the Supreme Court, an argument was made in the case of Nokha Singh and others V/s. Parvati Kuer and another, ( 1974 BBCJ 460 ) that the inquiry under section 117 (1) of the old Code, commenced only when witnesses are examined to support the truth of the allegation. A Bench of this Court rejected the argument, distinguishing the decision of the Supreme Court in Madhu Limayes case (supra) on the facts obtaining in the case before them. A Bench of this Court rejected the argument, distinguishing the decision of the Supreme Court in Madhu Limayes case (supra) on the facts obtaining in the case before them. The distinguishing feature between the two cases was stated to be that in the case before them, after notice of show cause was served on the parties, the petitioners had appeared and had shown cause and there was also a police report. The petitioners has appeared again after receipt of the police report which steps were held to be for ascertaining the truth of the information. Such was not the position in the case before the Supremo Court. In that case beyond passing the routine orders, no steps were taken for ascertaining the truth of the information ; not even witnesses, having knowledge about the matter, were examined. This Court in the case of AIR 1957 Patna 106 (supra)had held that the inquiry into the truth of the information commenced when the person proceeded against is present before the Court or has been brought before the court and the Magistrate takes into consideration the existing circumstances to proceed further to call upon the person to execute adinterim bond. To a similar effect was the decision in the case of AIR 1952 Travencore Cochin 262 (Supra) on the question as to when an inquiry under section 117 (1) of the old code [116 (1) of the new Code] commences. Both these decisions have had the approval of the Supreme Court, vide the decision of the Supreme Court in the case of AIR 1971 Supreme Court 2486 (Madhu Limaye and another V/s. S. D. M. Monghyr and others ). 25. The same question once again cropped up before this Court in the case of 1977 BBCJ 357 (supra ). The circumstances in that case were that a proceeding under section 107 of the Code, after having been duly drawn up, continued on for a period over six months and then the petitioners said that since the proceeding has been pending for more than six months, it stood terminated by virtue of section ! 16 (6) of the new Code. The circumstances in that case were that a proceeding under section 107 of the Code, after having been duly drawn up, continued on for a period over six months and then the petitioners said that since the proceeding has been pending for more than six months, it stood terminated by virtue of section ! 16 (6) of the new Code. In that context, the petitioner relied on the decision of this Court in the case of 1974 BBCJ 460 (supra) in which tho proceeding was held to have commenced when the petitioners appeard and fixed their show cause and the respondents relied upon the decision of the supreme Court in the case of AIR 1971 SC, 2481 (supra) in which the pro reed-ings was held to have not commenced even though the person proceeded against had been brought before tho Court and police report had been received, but witnesses had not been examined. 26. A breach of this Court held that by virtue of the procedure prescribed under section 116 (2) of the Code for inquiry into the truth of the information, which was referable to section 261 of the Code, the inquiry under section 116 (1)commences, even without taking of evidence, when the accused person is brought before the Magistrate and the particulars of the offence of which he is accused is stated to him and he is asked whether he pleads guilty or has any defence to make. In paragraph 6 of the said judgment, however, it was added that : "my considered opinion therefore, is that an enquiry as envisaged by section 116 of the Code commences only when the Magistrate applied his mind to the facts of the case in presence of the person against whom an order is made under section 111of the Code. " Thus according to this decision an application of the mind by the Magistrate to the facts of the case in presence of the person against whom an order under section 111 of the Code is made is the starting point of the commencement of the proceeding under section 116 (1) of the Code. 27. " Thus according to this decision an application of the mind by the Magistrate to the facts of the case in presence of the person against whom an order under section 111 of the Code is made is the starting point of the commencement of the proceeding under section 116 (1) of the Code. 27. The procedure, which a Magistrate must follow, either for comencing an inquiry in respect of a proceeding under section 107 of the Code, or for bringing the proceeding to its final conclusion, are laid in sections 111 to 117 of the Code, sections 111, 112, 113, 114 and 115 of the Code deal with routine procedures in a proceeding under section 107 of the Code, that is to say, of steps which require to be taken before setting upon to inquire into the truth of the information. After these requirements have been fulfilled, section 116 of the code prescribes that : " (1) When an order under section 111 has been read or explained under section 112 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 113, the magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases. (3) After the commencement, and before the completion, of the inquiry under section (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 tranquility 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 section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour. . . . . . . . . . . . " 28. . . . . . . . . . . . " 28. It will be seen that sub-section (1) of this section requires a Magistrate "to proceed to inquire into the truth of the information" against the person on whom order under section 111 has been made and who is present before him. As to how he will proceed to ascertain the truth of the information is governed by sub-section (2 ). But this much is clear that once a step has been taken by him to proceed to inquire into the truth of the information the inquiry has commenced. The steps taken may differ, depending upon the facts and circumstances of the Code, ytt if the steps is to proceed to inquire to the truth of the information, the inquiry has commenced. 29. Bearing this principle in mind, if the decisions cited on behalf of the petitioners ate scrutinized, it will at once appear that each of them has only tried to determine the point when the proceeding to enquire into the truth of the information has commenced, depending upon the particular facts and circumstance or the case. All the decisions are, however, unanimous on the point that the point of commencement is when a step has been taken to enquire into the truth of the information. In one case (AIR 197l SC 2481) summoning of witnesses and obtaining sworn statements was found to be necessary to commence the proceeding. In other cases, 1957 Patna 106 (supra) AIR 1952 Tr. Cochin 262 (Supra) and 19 4 BBCJ 460 (supra) appearance of the persons proceeded against and the Magistrate asking them as to what they had to say in respect of the substance of information, has been held to be the point of commencement of the inquiry. In another case, 1977 BBCJ 357 (supra), the point of commencement of the inquiry has been held to be when the Magistrate applies his mind to the facts of the case in presence of the person proceeded against.1 think, this case reiterates the same view as has been expressed by the earlier decisions of this court, but in a different language. I may observe that when a Magistrate asks the persons proceeded against to state what they had to say in respect of the substance of information, obviously the Magistrate was applying his mind to the case by taking such a step. I may observe that when a Magistrate asks the persons proceeded against to state what they had to say in respect of the substance of information, obviously the Magistrate was applying his mind to the case by taking such a step. Such a question cannot be a routine or mechanical question. 30. Summing up, therefore, the ratio laid in all the aforesaid decisions, whether of the Supreme Court or of this Court or of the Travancore cochin High Court, is that the proceeding under section 116 (1) of the Code commences when the person proceeded against appears in Court in pursuance of the notice served on him and the Magistrate proceeds to inquire into truth of the information. May be that in some cases witnesses may also require to be examined in relation to the truth of the information against the person proceeded, or may be that only when the person proceeded against is present before the magistrate, either with his show cause or without his show cause and the magistrate questions him, the inquiry commences. But in either case only after the order under section 111 of the Code has been read or explained to the person concerned, who is present in the Court, for his answer, the inquiry into the truth of the information is comenced by the Magistrate. It is another matter that the inquiry may continue on to elicit further materials, but so far as the commencement of the inquiry into the truth of the information is concerned, it commences when the Magistrate in presence of the person proceeded against takes step to know about the truth of the information. 31. On the facts of the instant case, the stage of section 116 (1) had been reached when on service of the notice under section 111 of the Code, the parties filed their show cause and the Magistrate heard them on it. Clearly, therefore, the Magistrates mind had started working towards finding out the truth of the information against the petitioners. The inquiry into the truth of the information as required under section 116 (1) of the Code must, therefore, be held to have commenced. 32. The question then arises as to whether the order under section 116 (3)of the Code was valid and proper. 33. The inquiry into the truth of the information as required under section 116 (1) of the Code must, therefore, be held to have commenced. 32. The question then arises as to whether the order under section 116 (3)of the Code was valid and proper. 33. In this regard the contention that the inquiry had not commenced, is clearly an untenable proposition, but the other contention that there was no reason for the Magistrate to think that immediate measures were necessary against the petitioners for preventing the breach of the peace, has substance. 34. It cannot be gainsaid that for the purpose of putting a person, proceeded against, to the term of excuting an ad interim bond, the Magistrate must consider and be satisfied that immediate measures are necessary for prevention of breach of the peace. The Magistrate is required to record his reasons in writing for taking such a stop. Obviously, the provisions contained in section 116 (3) of the Code postulates valid reason, after inquiry into the truth of the information has commenced, for binding down a person by asking him to execute ad interim bond. It cannot just be made on the basis of the allegations and counter-allegations. 35. Now in the instant case, the order dated 11th August, 1977, which is the relevant order in this regard, does not at all indicate any basis as to why the learned Magistrate considered the petitioners to be the one who should be bound down by an ad interim bond to be executed, by them. In the said order the learned Magistrate has dealt with the case and counter case of the rival parties and after doing so, has concluded that "this Court is satisfied and convinced that the second party is bent upon threatening the first party for taking over the possession of the cinema. All the members of the second party are asked to execute an ad interim bond of Rs.1,000/- each for maintaining peace till the finalisation of the proceeding under section 107 Cr. P. C. . . . . . . . . . . . " 36. In my opinion, such an order is not a correct order in the spirit of the provisions of section 116 (3) of the Code. After all it concerns the liberty of certain persons which cannot be decided on the rival contentions of the parties themslves. P. C. . . . . . . . . . . . " 36. In my opinion, such an order is not a correct order in the spirit of the provisions of section 116 (3) of the Code. After all it concerns the liberty of certain persons which cannot be decided on the rival contentions of the parties themslves. There must be something more on the record to indicate as to which party was really the one who should be bound down so that peace may not be breached. The order dated 11th August, 1977, has, therefore, to be set aside. It will be open to the learned Magistrate if he still considers it necessary to proceed under section 116 (3) of the Code, to ascertain further facts and then to take such emergency measures as are laid under section 116 (3) of the Code against such person or persons whom he thinks should be called upon to execute ad iaterim bond. 37. In the result, whereas the initiation of the proceeding under section 107 of the Code by order dated 18th July, 1977 is held to be valid, the order dated 11th August, 19/7 is quashed. With the aforesaid observations, the application is allowed in part. Application allowed in part.