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2021 DIGILAW 4 (GAU)

Bijay Sankar Sen v. State of Assam

2021-01-05

MIR ALFAZ ALI

body2021
ORDER : Mir Alfaz Ali, J. 1. Heard Mr. A. Das, learned counsel for the petitioner and Mr. A. Sattar, learned counsel for the respondent. 2. Challenge in this petition is to the order dated 31.12.2019, passed by the learned Additional Deputy Commissioner of Police (ADCP), Guwahati City, Central Police District in Case No. 279m/2019, whereby a proceeding under Section 107 CrPC has been drawn up. 3. Learned counsel for the petitioner submits that the learned ADCP, who was exercising the power of an Executive Magistrate did not record any reason for his satisfaction that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility or that there was sufficient ground for proceeding against such person. It is also pointed out by the learned counsel that the impugned order was in total violation of the provision of Section 111 CrPC, and as such requires to be set aside. 4. Section 111 CrPC provides that when a Magistrate acting under Section 107, Section 108, Section 109 or Section 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. 5. For better appreciation, the impugned order passed by the learned ADCP is reproduced below: "Order Case record received on transfer from the Dy. Commissioner of Police (Admn), Guwahati. Perused the police report in Panbazar P.S. Non-FIR Case No. 28/2019 U/S 107 Cr.P.C. and it reveals that here is every possibility of serious and imminent breach of peace in the locality and in this connection this proceeding has been initiated by the authority. Hence both the parties are directed to appear in my court for hearing on the next date fixed. Next date fixed on 06.01.2020 @ 2.00 PM. Given under my hand and seal of this Court day of 31.12.2019" 6. Hence both the parties are directed to appear in my court for hearing on the next date fixed. Next date fixed on 06.01.2020 @ 2.00 PM. Given under my hand and seal of this Court day of 31.12.2019" 6. A bare perusal of the order as reproduced above would show that the impugned order neither contained the substance of the allegation or information received by him/her, on the basis of which, she had formed the opinion as to the breach of peace or tranquility nor the learned ADCP has recorded the amount of bond to be executed or term for which it is to be in force or number, character and class of sureties etc.. The expression "he shall make an order in writing setting forth.............." clearly indicates that the requirement of Section 111 CrPC is mandatory while passing an order under Section 107 CrPC. 7. In Reena Dutta Vs. Mukti Mukherjee reported in 1990 0 Supreme (Gau) 133 while dealing with the requirement of an order under Section 107 CrPC, this court referring to a judgment of the Apex Court in Madhu Limaye Vs. Sub-Divisional Magistrate reported in AIR 1971 SC 2486 held as under: "In Madhu Limaye Vs. Sub-Divisional Magistrate, AIR, 1971 SC 2486 it was held that an order to execute a bond issued before the offence is committed though has the appearance of an administrative order, yet it is judicial in character and therefore, the satisfaction to be reached by the Magistrate, nit an arbitrary one, but it requires a judicial satisfaction which is expected to stand the scrutiny of higher Courts. From reading section 107 & 111 Cr.P.C. I find that two conditions are necessary for initiation of proceeding under the said section 107 viz formation of opinion and existence of sufficient ground for proceeding. As laid down by the Apex Court such satisfaction must be a judicial one and the order must disclose the materials for forming such satisfaction by the Magistrate, as such an order is expected to stand scrutiny of higher Courts." 8. The impugned order clearly demonstrates that the learned ADCP has passed the order in total disregard of the provision of Section 111 CrPC, and as such, the impugned order has suffered from gross illegality and impropriety and s such, it cannot be sustained. The impugned order clearly demonstrates that the learned ADCP has passed the order in total disregard of the provision of Section 111 CrPC, and as such, the impugned order has suffered from gross illegality and impropriety and s such, it cannot be sustained. Accordingly, the impugned order dated 31.12.2019 passed in Case No. 279m/2019 by the learned Additional Deputy Commissioner of Police, Guwahati City, Central Police District is hereby set aside. The criminal petition is allowed.