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Gopal Das Mahore and ors. Vs. the Executive Magistrate - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1978CriLJ857
AppellantGopal Das Mahore and ors.
RespondentThe Executive Magistrate
Cases Referred and Madhu Limaye v. Divisional Magistrate
Excerpt:
.....and be of good behaviour for a period of six months and, therefore, they may be called upon to execute a personal bond in the sum of rs. 500/- each for the purpose of maintaining peace and be of good behaviour. 500/- for keeping the peace, and, in case, they fail to furnish such bonds, they may be detained in custody. 7. in air 1971 sc 2481 :1971 cri lj 1715 (supra), it was held that a magistrate can ask for an interim bond for good conduct only after he had started inquiring into the truth of the information. it was observed that the power to ask for an interim bond is not given to the magistrate to postpone the case and hear nobody and yet ask a person to furnish a bond for good conduct. in the present case, it appears to us that the magistrate had entered upon the inquiry and..........that since there was imminent danger of breach of peace by the accused, they may be called upon to execute bonds for keeping the peace until the conclusion of the inquiry and, in case, they do not execute the requisite bonds, they may be detained in custody. this application was allowed by the magistrate who directed that till the conclusion of the inquiry, each of the accused should furnish a bond in the sum of rs. 500/- for keeping the peace, and, in case, they fail to furnish such bonds, they may be detained in custody. the accused refused to furnish such bond and were consequently detained in custody. thereafter, the magistrate started recording evidence and we are informed that one of the cases is fixed for orders and the other case has been kept for recording evidence today.5. the.....
Judgment:

C.M. Lodha, J.

1. These are two connected matters and raise identical questions and, therefore, we deem it proper to dispose them of by a single order.

2. The short facts giving rise to these petitions are that the petitioners who are said to be members of Thela Khomdha Union, Gwalior, were arrested Under Section 151 of the Code of Criminal Procedure, 1973, in the afternoon of February 14, 1978, for prevention of sabotage of public meeting and preservation of public peace and tranquillity at the site of the proposed High Court building at Gwalior. They were produced before the Executive Magistrate, Gwalior, for action Under Sections 107 and 117 of the Code of Criminal Procedure. The police also submitted an application to the Magis- trate for taking immediate action against the petitioners under Sub-section (3) of Section 116.

3. The learned Magistrate, after perusal of the reports submitted by the police, recorded the following order the same day, i. e., 14th February, 1978, Under Section 111 of of the Code of Criminal Procedure :

It appears to me on perusal of the report submitted by the police Kotwali, Jhansi Road, that the accused (petitioners) were raising slogans on 14-2-1978 at the proposed site of High Court building: at that time the foundation stone was being laid and there was apprehension that they would cause breach of the peace by resorting to arson and loot.

I, Indu Sharma, Executive Magistrate, Gwalior, therefore, think it necessary that in order to prevent the breach of public peace and tranquillity, the accused should be bound down to keep peace and be of good behaviour for a period of six months and, therefore, they may be called upon to execute a personal bond in the sum of Rs. 500/- each for the purpose of maintaining peace and be of good behaviour.

Signed and issued under my hand and seal today the 14th February, 1978.

Indu Sharma,

14-2-78

Executive Magistrate, Gwalior.

4. The order was read over to the petitioners, but they refused to sign the same. However, it appears that they did not admit the accusation. As already stated above, the police also made an application that since there was imminent danger of breach of peace by the accused, they may be called upon to execute bonds for keeping the peace until the conclusion of the inquiry and, in case, they do not execute the requisite bonds, they may be detained in custody. This application was allowed by the Magistrate who directed that till the conclusion of the inquiry, each of the accused should furnish a bond in the sum of Rs. 500/- for keeping the peace, and, in case, they fail to furnish such bonds, they may be detained in custody. The accused refused to furnish such bond and were consequently detained in custody. Thereafter, the Magistrate started recording evidence and we are informed that one of the cases is fixed for orders and the other case has been kept for recording evidence today.

5. The only point urged by the learned counsel Mr. Jai Prakash on behalf of the petitioners in both the cases is that the detention is illegal inasmuch as the Magistrate has passed an order for execution of bond by the petitioners before commencement of the inquiry. It is urged that the Magistrate acquires jurisdiction to direct execution of interim bonds Under Section 116(3) of the Code of Criminal Procedure, 1973, only after he has commenced the inquiry till conclusion of the inquiry. In support of this contention, learned counsel has relied on Madhu Limaye v. Ved Murti AIR 1971 SC 2481 : 1971 Cri LJ 1715 and Madhu Limaye v. Divisional Magistrate, Monghyr : 1971CriLJ1720 and has urged that the Magistrate was not competent to direct the petitioners to execute the bonds merely after perusal of the police report. The short question for our determination, therefore, is whether in the present case, the inquiry can be said to have commenced,

6. Section 116(3) of the Code of Criminal Procedure provides that 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, 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. It may be pointed out that the Magistrate, in the present case, questioned, the accused as to the truth of the information contained in the police report and on their having refused to sign the order, the Magistrate thought it fit to proceed with the case Instead to dropping the proceedings. It cannot, therefore, be said that the Magistrate had not commenced the inquiry. In our opinion, it is not necessary for the Magistrate to actually record any evidence before passing an order under Sub-section (3) of Section 116, All that is necessary is that the Magistrate must come to the conclusion that the matter needed to be inquired into and should take some steps in that direction In the present case, as already pointed out, the Magistrate read out the order to the accused as to the allegations contained in the police report calling upon them to show cause why they should not be directed to execute the bonds during pendency of the inquiry. This was sufficient compliance with the provisions of S. lie (3) of the Code and it cannot be said that the detention of the accused (petitioners) on account of their refusal to execute the bonds was illegal.

7. In AIR 1971 SC 2481 : 1971 Cri LJ 1715 (supra), it was held that a Magistrate can ask for an interim bond for good conduct only after he had started inquiring into the truth of the information. It was observed that the power to ask for an interim bond is not given to the Magistrate to postpone the case and hear nobody and yet ask a person to furnish a bond for good conduct. In the present case, it appears to us that the Magistrate had entered upon the inquiry and satisfied himself, at least prima facie, on perusal of the police report about the truth of the information in relation to the alleged facts. ' In the Supreme Court cases relied upon by the learned counsel, the Court had come to the conclusion, in the facts and circumstances of those cases, that the Magistrate had not commenced the inquiry. It is sufficient to point out that it depends upon the facts and circumstances of each case whether the inquiry has commenced or not. The present is not a case where it can be said that the Magistrate had adjourned the case and no effort was made by him to inquire into the truth of the allegations. In this view of the matter, we are unable to hold that the detention of the petitioners Under Section 116(3) of the Code on account of their refusal to execute the bonds was illegal.

8. These petitions are, therefore, without force and are hereby dismissed.


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