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Khangembam Kokchao Singh and ors. Vs. Haojam Damudor Singh - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantKhangembam Kokchao Singh and ors.
RespondentHaojam Damudor Singh
Excerpt:
.....warrant of arrest against the petitioners. if he is satisfied that an emergency exists and that urgent orders are necessary by acting upon the application of the police officer or upon the oral testimony of the police prosecutor, etc. the order is not bad merely on the ground that the magistrate passed it on the same information and on the same evidence, which were the basis of his order under section 112, cr. 11. the learned counsel for the respondent contended that the present revision petition is bad in law as it was filed to set aside the orders of the s......16-8-1967.3. on 16-8-1967, 10 of the petitioners were brought under arrest and produced before the learned magistrate. they moved for bail. but, the magistrate remanded them to jail on the ground that they did not produce sureties and directed that they should execute interim bonds. he posted the case to 31-8-1967.4. on 17-8-1967, the petitioner executed interim bonds and they were released from jail.5. on 31-8-1967, the magistrate posted the case to 28-9-1967 to enable the petitioners to file their statements to show cause against the notices issued to them. in the meanwhile the s. d. m. started proceedings in criminal misc. case no. 37 of 1967 under section 514, cr. p.c. against six persons out of the petitioners on the ground that they violated the terms of the interim bonds executed.....
Judgment:

C. Jagannadhacharyulu, J.

1. This is a revision petition filed by the petitioners in Criminal Revision Case No. 1 of 1967 on the file of the Additional District Magistrate Manipur under Sections 43.5 and 439, Cr. P.C. to set aside his order dated 6-5-1968, under which he upheld the order of the S. D. M., Bishenpur passed in Criminal Misc. Case No. 37 of 1967 under Section 107, Cr. P.C.

2. The Police Officer in charge of Kumbi Outpost filed a report on 7-8-1967 before the S. D. M. Bishenpur recommending the initiation of proceedings under Section 107, Cr. P.C. against the petitioners. The learned S. D. M. Bishenpur passed a composite order on the same date of 7-8-1967 stating, firstly, that he heard the respondent herein, who stated that certain land in dispute mentioned in the schedule of the order passed. by him was cultivated by him for about 1.1. years, that on 3-8-1967 the petitioners ploughed away the land and threatened to murder the respondent if he interfered that the learned S. D. M. was satisfied with the information filed by the Police, which was supported by the complaint petition, that there was imminent breach of the peace between the parties and that the only measures to be taken to prevent the breach of peace was immediate arrest of the petitioners.

So, he registered the case as Criminal Misc. Case No. 37 of 1967 under Section 107, Cr. P.C. Secondly, he directed the petitioners to show cause why they should not execute a bond for Rs. 500/- with one surety for a like amount for keeping peace for a period of 12 months from the' date of the disposal of the proceeding and ordered issue of a warrant of arrest against the petitioners returnable at 9-30 a.m. on 16-8-1967 and appended schedule of the disputed land to his order. Thirdly, below the schedule he passed another order on the same day of 7-8-1967 stating that the petitioners committed an offence under Section 107, Cr. P.C. in respect of the disputed land by entering into it forcibly with deadly weapons, that the Magistrate had sufficient reason to believe that the petitioners would not attend his Court for hearing of the case unless they were compelled to do so and that, therefore, they should be arrested and brought before him before' 9-30 a.m. on 16-8-1967.

3. On 16-8-1967, 10 of the petitioners were brought under arrest and produced before the learned Magistrate. They moved for bail. But, the Magistrate remanded them to Jail on the ground that they did not produce sureties and directed that they should execute interim bonds. He posted the case to 31-8-1967.

4. On 17-8-1967, the petitioner executed interim bonds and they were released from Jail.

5. On 31-8-1967, the Magistrate posted the case to 28-9-1967 to enable the petitioners to file their statements to show cause against the notices issued to them. In the meanwhile the S. D. M. started proceedings in Criminal Misc. Case No. 37 of 1967 under Section 514, Cr. P.C. against six persons out of the petitioners on the ground that they violated the terms of the interim bonds executed by them.

6. The petitioners filed Criminal Revision No. 1 of 1967 on the file of the Additional District Magistrate, Manipur Under Sections 435 & 438, Cr. P.C. to make a reference to this Court to set aside the various orders of the S. D. M. The learned Additional District Magistrate dismissed the petition. Hence, the present revision petition.

7. The first question that arises for determination is whether the composite order of the learned S. D. M. dated 7-8-1967 (consisting of three portions mentioned above) under Sections 107 and 112 and evidently under Section 117(3), Cr. P.C. is a valid one. Regarding the first portion of his order, it is seen that he was entitled to act upon the Police report as well as the complaint peition filed by the respondent. There is no restriction as to the source of the information, on which a Magistrate can act under Section 107, Cr. P.C. Vide also Note 3 at page 395 of Vol. I of AIR Commentaries on Cr'.' P.C. 6th Edition and also Tulsibala Rakhit v. N. N. Khosal AIR 1953 Cal 109. As such, the Magistrate was competent to initiate the proceedings under Section 107, Cr. P.C.

8. The second portion of the order of the S. D. M. dated 7-8-1967 shows that he was satisfied that there was imminent breach of the peace between the parties and that: it could only be prevented by the immediate arrest of the petitioners. He, therefore, directed the petitioners to show cause why they should not execute a bond for Rs. 500/-with one surety for a like amount for keeping peace for a period of 12 months from the date of the disposal of the proceedings and issued warrant of arrest against the petitioners. Under Section 112 and the proviso to Section 114, Cr. P.C. he was competent to pass the above order in question, as he deemed it necessary to require the petitioners to show cause why action should not be taken under Section 107, Cr. P.C.

9. Then, the third portion of the order of the S. D. M. dated 7-8-1967 shows that he attached a further order stating that he had sufficient reason to believe that the petitioners would not attend his Court for the hearing of the case, unless they were compelled to do so and that, therefore, he authorised the Officer in charge of Kumbi Outpost to arrest the petitioners and produce them before him on 16-8-1967 at 9-30 a. m. Under Section 114, Cr. P.C. the Magistrate shall issue a summons to the person against whom proceedings are drafted under Section 112 read with Section 107, Cr. P.C. if he is not present in the Court. But, under the proviso to Section 114, Cr. P.C. he is competent to issue a warrant of arrest if he is of the opinion that the commission of the breach of the peace cannot be prevented otherwise than by the immediate arrest of the person, against whom proceedings are taken under Section 107 read with Section 112, Cr. P.C. So, if this order of the Magistrate is to be construed only to show that the Magistrate issued the warrant of arrest under the proviso to Section 114, Cr. P.C. it is not illegal, though it is redundant, as he had already passed an order of arrest of the petitioners in the second portion of his order. But, the notes paper maintained by the Magistrate shows that this order was construed by him as one under Section 117(3), Cr. P.C., whereunder pending the completion of the inquiry under Sub-section (1) of Section 117, Cr. P.C. he could call upon the petitioners by passing a separate order recording his reasons to execute bonds with or without sureties for keeping the peace until the conclusion of the enquiry, etc.

That the Magistrate construed it as an order under Section 117(3), Cr. P.C. is clear from the fact that he initiated separate proceedings against some of the petitioners under Section 514, Cr. P.C. in Criminal Misc. Case No. 37 of 1967 on the ground that they violated the terms of the interim bonds. An order under Sub-section (3) of Section 107, Cr. P.C. can be passed when the proceedings have reached the stage of enquiry under Section 117(1), Cr. P.C. The latter stage arises after the order under Section 112, Cr. P.C. had been read or explained to the petitioners after they were produced before the Magistrate and when the Magistrate proceeded to enquire into the truth of the information, upon which he took action. The Magistrate need not commence to take evidence before he passes the order under Sub-section (3) of Section 117, Cr. P.C. But, it is necessary, before he proceeds to take action under Sub-section (3) of Section 117, Cr. P.C. that the order passed by him under Section 112, Cr. P.C. has been read or explained to the petitioners. That this is the correct view is also evident from Pt. 4 note 6, page 472 of AIR Commentaries on Cr. P.C. Vol. I-6th Edition, The learned Commentators state that an order under Sub-section (3) of Section 117, Cr. P.C. is not a mere routine order to be appended to an order under Section 112, Cr. P.C. and is not meant merely to anticipate the final order which may be made under Sec-118, Cr. P.C. that it is designed to meet an emergency and that a composite order drawing up a proceeding under Section 107, Cr. P.C. and calling upon the parties to furnish interim bonds under Section 117(3), Cr. P.C. is irregular in law. But, the Magistrate can pass the order subsequently under Section 117(3), Cr. P.C. if he is satisfied that an emergency exists and that urgent orders are necessary by acting upon the application of the Police Officer or upon the oral testimony of the police prosecutor, etc. The order is not bad merely on the ground that the Magistrate passed it on the same information and on the same evidence, which were the basis of his order under Section 112, 'Cr. P.C. Vide also Dulal Chandra Mondal v. The State AIR 1953 Cal 238 and Amir Singh v. State AIR 1962 Pat 51 in this connection which support this view,

10. Thus, the composite order passed by the S. D. M. by appending an order under Section 117(3), Cr. P.C. to the order under Section 112, Cr. P.C. is illegal. The proceedings taken by the learned S. D. M. under Sections 107, 112 and the proviso of Section 114, Cr. P.C. will stand. But, the proceedings taken by him under Section 117(3), Cr. P.C. and subsequently under Section 514, Cr. P.C. are hereby set side. If the Magistrate feels that action has to be taken under Section 117(3), Cr. P.C. he is at liberty to do so by following the provisions of Section 117(3), Cr. P.C.

11. The learned Counsel for the respondent contended that the present Revision Petition is bad in law as it was filed to set aside the orders of the S. D. M. in two different eases. He relied on Bankim Chandra Chakravarty v. Regional Provident Fund Commissioner AIR 1958 Pat 314 and my own judgment in Aribain Pishak Sharma v. Aribarn Tuleswar Sharrna AIR 1968 Mani 74, where it was held that a single writ petition does not lie in respect of different cases. But, the present one is not a matter of this type. It is the composite order dated 7-8-1967, which was passed by the S. D. M., which is now in question. It includes an illegal order under Section 117(3), Cr. P.C. and consequential further action taken by the S. D. M. under Section 514, Cr. P.C. against the petitioners for violating the irregular order. So, these rulings have no application to the facts of the present case.

12. In the result, the revision petition is allowed in part. The interim bonds executed by the petitioners pending enquiry under Section 117(3), Cr. P.C. and the subsequent action taken by the Magistrate under Section 514, Cr. P.C. are quashed. The Magistrate is directed to pass a fresh order under Section 117(3), Cr. P.C. if he considers that immediate measures are necessary for the prevention of the breach of the peace or disurbance of the public tranquillity or the commission of any offence or for the public safely. He should record his reasons in writing, if he passes the order.


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