K.K. Vijaywargiya, J.
1. By this petition under Article 226 of the Constitution the petitioner has prayed that his friend Daljitsingh r/o Pagnis Paga, Indore, who has been illegally arrested by the police on 19.7.1984 at 8.00 a.m. from his house and is in custody be ordered to be released. According to the petitioner the grounds of his arrest were not disclosed to the detenu and that the detenu has been deprived of his (liberty) otherwise than in due course of law.
2. In the return filed on behalf of the respondents it is stated that the detenu was arrested on 19.7.1984 at 11.45 a.m. in front of Gurudwara Imil Saheb, Yeshwant Road Chouraha, Indore where he had collected a crowd and was inciting the public on Punjab situation and that it was necessary to arrest him to prevent breach of peace. He was arrested under the provisions of Section 151 of the Code of Criminal Procedure (for short 'the Code') and was immediately produced before the Sub-Divisional Magistrate, Indore. A challan under Section 107 of the Code was also filed against him. The learned Magistrate ordered issuance of a notice to the detenu why he should not be required to furnish security in the sum of Rs. 10,000/- for a period of six months to maintain peace. It is further stated that on that very date the learned Magistrate passed an order under Section 116(3) of the Code directing the detenu to furnish interim security in the sum of Rs. 10,000/- to keep the peace during the pendency of the case against him and that as the detenu failed to furnish the security he was put in judicial custody and he continues to be in judicial custody in the district Jail. Indore.
3. We have heard the learned Counsel for the parties and perused the record produced before us.
4. In the challan filed before the Sub-Divisional Magistrate, Indore, by the Inspector in charge police station Pandhrinath, Indore, it is alleged that the detenu had collected a large crowd in front of the Gurudwara Imil Saheb on Punjab problem and that there was likelihood of breach of peace. Therefore, the detenu was arrested under Section 151 of the Code and that challan was filed under Sections 151, 107 and 116(3) of the Code. This challan was accompanied by an affidavit of Shri Mahesh Singh Raghuwanshi, Police Sub-Inspector, Police Station, Pandhrinath, Indore. In the affidavit it is stated that a challan has been filed against the detenu under Sections 151, 107 and 116(3) of the Code and that it would be expedient to take interim security from the detenu under Section 116(3) of the Code. Immediately on receipt of the challan the learned Magistrate passed an order (Ann. Rule 2) directing issuance of a notice under Section 111 of the Code why the detenu should not be ordered to furnish security in the sum of Rs. 10,000/- from a respectable citizen for a period of six months to keep the peace. Just below the said order the learned. Magistrate passed another order to the effect that the police disclosed a possibility of immediate breach of peace. The notice under Section 116(3) of the Code was read over. From the statement of the Investigating Officer and other facts of the case it is confirmed that the detenu may cause immediate disturbance to peace and public safety at any time and therefore, the detenu is ordered to furnish interim security in the sum of Rs. 10,000/- from persons holding solvency certificate and a bond in the like amount to keep peace during the pendency of the case. The order further states that the case be put up on date which was left blank.
5. The entire order (Ann. 2) is a cyclostyled order. In the notice under Section 111 (Ann. 3) which was said to have been given to the detenu, the detenu is directed to furnish security in the sum of Rs. 10,000/- for a period of six months/one year. This notice is again cyclostyled containing both six months and one year, none of which has been scored off. The detenu did not furnish security and therefore he continues to be in judicial custody.
6. It does not appear from the record or from the return of the affidavit filed in support of the return that anything further has been done in the matter by the learned Magistrate.
7. In Madhu Limaye v. Ved Murti AIR 1971 SC 2481 : 1971 Cri LJ 1715 their Lordships of the Supreme Court after examining in detail the Scheme of the provisions of Sections 107, Section 111, Section 112 and Section 117 of the Code have observed as follows:
It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry' postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear nobody and yet ask the petitioners to furnish bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan or Ved Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. Therefore the proceedings for asking for an interim bond were completely illegal.
It was further held by their Lordships as under:
It is quite clear that the Magistrate was too much in hurry. He did not read the law to inform himself about what he was to do. Having the petitioners before him and having read to them the order under Section 112 it was his 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. It was for this reason that we held that the Magistrate did not act according to the law and his action after August 9, 1970 in detaining the petitioners in custody was illegal.
8. The ratio of the above decision fully applies to the present case. In the present case the Magistrate did not commence any enquiry, did not record the statement of the Investigating Officer or the witnesses which were named in the challan. The Magistrate in a mechanical manner signed the cyclostyled order directing the detenu to furnish interim security in the sum of Rs. 10,000/- to keep the peace during the pendency of the case. The next date on which the detenu was to be produced before the Magistrate for further enquiry was also not mentioned in the order. The date as stated above was left blank.
9. In our opinion the learned Magistrate did not apply his mind to the relevant provisions of the Code and mechanically signed the cyclostyled order and without commencing the enquiry directed the detenu to furnish interim security. As the order passed by the learned Magistrate is patently illegal the detenu's custody after 19.7.84 for non-furnishing of the interim security is illegal and he is entitled to be set at liberty, forthwith.
10. As a result of the discussion aforesaid this petition is allowed. The respondents are directed to be set at liberty the detenu Daljitsingh r/o 22, Pangnis Paga, Indore, forthwith, if not required in any other case.