1. This criminal revision petition is directed against the order dated- 31-12-81 passed by the Executive Magistrate, Sibsagar in Misc. Case No. 386 of 1981 directing the petitioner to execute an ad interim bond for Rupees 10,000/-. The petitioner was arrested from his residence on "30-12-81, brought to the Sibsagar Police Station and detained in the lock up without disclosing any ground. It appears on 30-12-81 one S.I., Sibsagar Police Station, submitted a report, whereupon the Misc. Case No. 386/81 was registered under Section 107 of the Cr. P.C. to the following effect:
The short history of the case is that the accused mentioned in column No. 2 along with Hahsara Chatra Santha and Gana Sangram Parisad and with the help of some students instigated the businessmen and employees and others to stop bus, train etc. in the Road Block movement and he has openly announced that he along with his colleagues will come to clash with those persons who will attend their offices and schools and colleges. Therefore in apprehension of serious breach of the peace between him and other agitationists with those employees and students who are not participating in the agitation the above person was arrested Under Section 151 Cr. P.C. and forwarded to Court. If the above person is not kept confined in the Hazat till 1-1-82 there is every apprehension, of road and rail blockade. Therefore the case is forwarded to Court for asking him why he should not be ordered to execute a bond not to involve himself in such things for a period of one year Under Section 107 Cr. P.C.
2. The learned Executive Magistrate it is submitted, without holding any enquiry with regard to the correctness or otherwise of the information alleged by the police and without recording any evidence, passed the impugned order dated 31-12-81, which reads:
The police of Sibsagar Police Station has produced the accused before Court on being arrested Under Section; 107 Cr: P.C. Seen the Police report submitted in this connection. It is found from the police report that the accused was instigating the public to involve in the Road Block' programme and from that there appears apprehension of breach of the peace, I am satisfied that there may be apprehension of breach of the peace at any moment from his activities. Therefore, he may be asked to show cause under Section 107 Cr.' P.C. why he should not be asked to refrain from such action and he may be asked to submit ad interim bond for Rs. 10,000/- with two sureties of the like amount not to commit any breach of peace during the pendency of enquiry, in default to hajat.
3. It is stated at the Bar that the petitioner having refused to execute the bond, was sent to hajat and he moved this petition on 6-1-82 and the same was admitted and the petitioner was allowed to go on P. R. bond.
4. Mr. S. N. Medhi, the learned Counsel appearing for the petitioner, submits that the impugned order for execution of ad interim bond passed without commencing the enquiry as contemplated by law, is illegal and liable to be quashad. Mr. S. Ali, learned Counsel appearing for the State of Assam, submits that the learned Magistrate having found from the police report that the accused was instigating the public to involve in the road block programme, which created the apprehension of breach of peace, asked the petitioner to show cause under Section 107 of the Cr. P.C. and meanwhile to execute the interim bond and he committed no error in doing so.
5. The law relating to security for keeping the peace and for good behaviour is to be found in Chap. VIII, Sections 106 to 124, of the Cr. P.C. Section 106 deals with security for keeping the peace on conviction and Section 107 deals with security for keeping the peace in other cases. Under Sub-section (1) of Section 107 when an Executive Magistrate receives information that any person is likely to commit a breach of 'he peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranrquillity and is of opinion that there is sufficient ground for proceeding, he may, "in the manner hereinafter provided", require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. Under Sub-section (2) proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity, instead of District Magistrate or Sub-Divisional Magistrate, as was provided under the old section. This section corresponds to the same section of the old Code but Sub-sections (3) and (4) have been omitted. Under S. III, which corresponds to Section 112 of the old Code, when a Magistrate acting under Section 107 deems it necessary to require any person to show cause under that 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 (it any) required. Under Section 112, which corresponds to Section 113 of the old Code, if the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him. Under Section 116, which corresponds to Section 117 of the old Code, 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. Under Sub-section (2) of Section 116 such inquiry shall be made, as nearly as may be practicable, "in the manner herein-after prescribed for conducting trial and recording evidence in summons cases."
6. The above is the procedure laid down for the inquiry. The expression "in the manner hereinafter provided" in Sub-section (1) of Section 107 referred to the above procedure. Under Sub-section (3) of Section 116, which corresponds to Sub-section (3) of Section 117 of the old Code, after the commencement and before the completion of the inquiry under Sub-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 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 Section 111 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. Under Sub-section (6) the inquiry shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceeding under this chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. Under Sub-section (7) where any direction is made under Sub-section (6) permitting the continuance of proceeding the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.
7. It may be noted that Sub-sections (6) and (7) have been newly added. As regards Sub-section (3) of Section 116 while the corresponding old Sub-section (3) of Section 117 started with "pending the completion of the inquiry under Sub-section (1)", the new Sub-section starts with "after the commencement and before the completion of the inquiry under Sub-section (1)". The difference in the language does not make any difference in the meaning though the present Sub-section puts the matter beyond doubt that the interim bond could be taken only after the commencement of the inquiry proceedings and before they are completed.
8. In Madhu Limaye v. Ved Murji AIR 1971 SC 2481 : 1971 Cri LJ 1715, where the Magistrate used the powers under Sub-section (3) of Section 117 of the old Code without commencing to inquire into the truth of the information, adjourned the case for examination of the petitioners, without summoning the witnesses in support of the information asked the petitioner to furnish an interim bond or to go to jail, it was held that the powers of the Magistrate to ask for an interim bond were not properly exercised as that stage had not been reached under the scheme of the Cr. P. G, and that the Magistrate could only ask for an interim bond if he could not complete the inquiry and that the expression "during the completion of the enquiry" postulated a commencement of the enquiry which meant commencement of a trial according to the summons procedure. It was observed that Chap. VIII of the Code contained its own elaborate procedure for trial of a suspected person and it was not possible to overlook those provisions which the Legislature had with great emphasis specified, for the trial of such cases. It was further observed that Section 117(3)(of the old Code) presumed that unless the person was bound over, he would be able to perpetrate that act, which caused an apprehension of the branch of peace. It was not necessary to take a bond from a person who was already in detention and was not released. The danger arose when the man was free and not when he was in custody. It was to prevent his acting when the bond was taken or he was kept in custody till he gave the bond. It was clearly observed that the petitioners being brought under the process of Chapter VIII an order was read over under Section 112(111 of the new Code) and if interim bonds were required from them the Magistrate ought to have entered upon the inquiry and satisfied himself, at least, prima facie about the truth of the information in relation to the alleged facts. Without making any enquiry neither could the Magistrate order the petitioners to be detained in custody nor require them to execute a bond with or without surety. Having the petitioners before him and having read to them the order under Section 112(now 111) it was the Magistrate's duty either to release them unconditionally or to ask, them to give an interim bond for good conduct but only after he has started inquiring into the truth of the information.
9. Similarly in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr . It has been observed that Section 107 "is aimed at persons, who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity. This is an instance of preventive justice which the courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of offences". It has further been observed by their Lordships that the order under Section 112 (now Section 1ll) is on hearsay but the inquiry under Section 117 (now 116) is to ascertain the truth of the necessary information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the person in custody. Therefore as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrates. The facts must be of definite character. Some inquiry has to be made before the bond can be ordered. Some inquiry must also be made before action is taken to ask for an interim bond or place the person in custody in default. The Section is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view Were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can he made into a final order unless something to the contrary is established
10. In Kadir Ali Dewan v. Wahab Ali, reported in 1980 Cri LJ 507 (Gauhati) it has been observed (at p. 510):
Section 116 contemplates inquiry as to truth of information and under Sub-section (3) after the commencement, and before the completion of the inquiry under Sub-section (1) the Magistrate, if he considers that immediate measures are necessary, he 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 until the conclusion of the inquiry and may detain him in custody. Thus, the execution of the bond is the penultimate stage of the proceeding.
It has further been observed that Section 107 may act as an engine of injustice and oppression, if it is not properly used. The Magistrate has to follow the prescribed procedure. The words "in the manner hereinafter provided" in Section 107 are essential words and the Magistrate cannot discover a manner of his own.
11. The next question is when the inquiry can be stated to have commenced. In Madhu Limaye's case (supra) it has been indicated that until the allegations are supported by materials so as to justify the judicial mind that a direction for the bond is called for, no order for furnishing a bond can be given. The inquiry does not commence as soon as the delinquent appears and the order under Section 111 of the Code is read over to him. The bare allegations cannot form the foundation of the order for a bond and failing furnishing of it detention of the person. The allegations have got to be inquired into and tested. It may be that in. a particular case, oral evidence may not be necessary, and affidavits may be enough to test the truth or otherwise of the allegations. There may be documentary evidence supplementing or supplanting oral evidence which necessitates examination of witnesses. Parties may even agree that the allegations are true in which case there may not be any necessity of looking for evidence. Different situations that may arise in different cases cannot be catalogued and discretion must be left to the Magistrate to deal. with particular situations as may arise before him in different cases, but the mandate of the law is that the inquiry must commence and the Magistrate must proceed to ascertain the truth of the allegations by application of his judicial mind and look for materials which would prove the allegations to be facts. As was observed in Sona Khan v. State 1981 Cri LJ 39 (Orissa) (FB), "The inquiry contemplated is an acceptable legal process by which allegations can be converted into facts, What that process would be should be left to the discretion of the Magistrate with reference to facts of each case, but he must adopt an acceptable Judicial method for testing the al-legations and recording findings of facts with reference for the acceptability or otherwise of such allegations.,.,....Commencement of inquiry starts when the Magistrate attempts in a legal way to put 'he allegations to test for finding out whether they are the facts. Both Sub-section s (3) and (6) of Section 116 refer to this stage as the commencement of inquiry. The Supreme Court rightly pointed out in Madhu Limaye's case that it is not an inquiry within an inquiry. Ordinarily, the interim bond is asked for on the allegations forming the foundation for the basic proceeding. There may be instances where fresh allegations also come up and become material for an interim bond. Yet, commencement of inquiry' in Sub-sections (3) and (6), in our opinion, refers to the same stage. It is one of the well accepted rules of interpretation that when the same phrase occurs in the same section at different places and there is no indication of legislative intent that, a different meaning is intended thereby, both the phrases have to be given the same meaning". I respectfully agree with the observation which is in conformity with the law enunciated by 'he Supreme Court.
12. Applying the above principle to the impugned order we find that the learned Magistrate found only from the police report that the accused was instigating the public to involve in the road block programme and from that there appeared apprehension of breach of peace. There is no indication of any inquiry having been made or any evidence having been taken to ascertain the truth or otherwise of the allegations. The learned Magistrate was "satisfied that there might be ''he apprehension of breach of the peace at any moment from his activities", but without making any inquiry as to the truth of the allegations. In other words, the inquiry as contemplated under Section 116 did not commence at all. Without commencing such an inquiry he lacked jurisdiction to pass the impugned order for execution of the interim bond failing which to detain the delinquent. The learned Magistrate failed to appreciate the words "in the manner hereinafter provided" as laid down in Sections 107, 111 and 116 of the Cr. P.C. As has already been stated that under Section 116(I) 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. Under Sub-section (2) of the same section, 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; and under Sub-section (3) after the commencement and before the completion of the inquiry under Sub-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 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 Section 111 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 bond is executed or in default of execution until the inquiry is concluded. The learned Magistrate appears to have misdirected himself in passing the impugned order directing the petitioner to execute an ad interim bond without making any inquiry as required by law. The impugned order having thus been passed without following the prescribed procedure it is lible to be quashed.
13. I, however, do not find any ground for quashing the entire proceeding in Misc. Case No. 386 of 1981, in face of the Police Report. It may still be open for the learned Magistrate to proceed with the inquiry according to law, if the proceeding has not otherwise terminated.
14. For the reasons stated above, the impugned order dated 31-12-1981 in Misc. case No. 386/81 under Section 107, Cr. P.C. is quashed. The petition is to that exetent allowed; and the Rule is made absolute.