Skip to content


Sanatan Baliarsing and ors. Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. No. 75 of 1950
Judge
Reported inAIR1952Ori33; 19(1953)CLT370
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 112
AppellantSanatan Baliarsing and ors.
RespondentState and anr.
Appellant AdvocateV. Pasayat, Adv.
Respondent AdvocateGovt. Adv. and ;R.K. Das, Adv.
DispositionPetition allowed
Cases ReferredJagannath Prasad v. Emperor
Excerpt:
.....that the objection of inadequate notice of facts was taken in the written statement filed by the petitioners & the magistrate nevertheless did not amend the proceeding it also appeared that relating to the self-same facts a defective proceeding under section 107 had been drawn up by the magistrate & the parties bad once before come up to the high court complaining against its defective character & a learned judge of that court in dealing with that earlier proceeding said that tbe responsibility of issuing notice under a. the police report if it can be referred to in this connection, is little better. ' however strongly expressed, the learned judge has not clearly committed himself to the position that the proceeding necessarily becomes void for the lacuna of the kind referred to. it..........advocated. but, however, we are bound by the words of the section which means substance of the information. information is certainly something other than generalisation of the nature of the acts such high handedness, violence, harassment etc. to quote the words of walsh j. in the allahabad case on such a vague allegation any citizen of india could be called upon to show cause why he should not be bound down under section 110, criminal p. c. it is necessarily to be understood that there must be some past overtacts either completed or attempted or openlycontemplated or conspired which must give rise to the suspicion as to the future conduct of the accused in relation to his neighbours so that an apprehension of breach of peace or disturbance of the public tranquillity in tbe local.....
Judgment:
ORDER

Ray, C.J.

1. This is an application by the petitioners for quashing a proceeding initiated under Section 107, Criminal P. C. The order of the Magistrate which ia based upon a police report reads :

' . . . . that you Bankanidhi Subudhi & 58 others of Sanapadar, 2nd party indulging in acts of highhanded-ness, violence, harassment, etc., towards the first party Bhagirathi Mohapatra & that your activities are likely to cause imminent breach of place or disturb the public tranquillity in the local limits of the jurisdiction of this Court. You are hereby ordered to show cause why you should not be ordered to execute a bond for Rs. 1000 each with one surety in the like amount for keep:ng peace for a period of one year.'

This order has been made under the provisions of Section 112, Criminal P. C. The section reads :

'When a Magistrate acting under Section 107, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substanae of the information received, the amount of the bond to be executed, the term for which it is to be in force, & the number, character & class of sureties if any) required.'

The question involved is whether the order above contains the substance of the information received.

2. The petitioners' case is that the contents of the order are too vague to give them requisite notice of the substance of information received by the Magistrate, & therefore, the order is void & of no legal effect. In other words, it is contended that the proceeding is not lawfully & validly initiated & should, therefore be quashed. This proceeding was initiated on 5-9-1949 & has been dragging on till now. On perusal of the different orders already passed in the ordersheet of the case, it appears that the proceeding was first started in the Court of the Sub-Divisional Magistrate at Khurda, but as one or more of the accused persons were detained in the Puri Jail as security prisoners, the accused persons had to suffer in the Khurda Court till 21-7-50 without the proceeding progressing beyond examination & partial cross-examination of the first party, Bhagirathi Mohapatra. Later, in order to enable the detenu accused to attend the Court, the proceeding was transferred to the Court of the Magistrate at Puri where it is still pending. The petition to this Court was admitted on 24-8-50, but stay of further proceedings was not ordered. Under the circumstances, one would normally expect that the proceeding should have been procfeded with & the trial should have concluded by now. It is difficult to understand why the trial has not been pushed on. I understand from a representation made by the learned counsel for the petitioners that all the same, the petitioners have been attending the Puri Court from date to date. This unnecessary dragging of a large number of casea in this manner reminds one of the old saying 'what is play to you is death to us'. I would invite the attention of the authority, namely, the District Magistrate, the Eevenue Commissioner & the Chief Secretary who will look into the matter & see that such protraction of proceedings to the great harassment of a large number of people does not recur in future.

3. Coming to the question at issue & considering that the matter is of some general importance I have tried to study the matter carefully & ascertain the views of various High Courts on the point whether lack of strict compliance with theprovisions of Section 112, Cr. P. C., namely failure to set forth the substance of the information, would render the proceeding void & wherever such lacuna occurs, the accused persons shall, as a matter of right, be entitled to have the proceeding quashed. I have been ably assisted by the learned counsel for both sides & it has been brought to my notice that a decision of a Single Judge of this Court also has added to the difficulty of the problem so far as the Courts under the juriediction of this High Court are concerned.

4. Mr. V. Pasayat has relied upon the following decisions, namely, Nand Kishore v. Emperor, A.I.R. (9) 1922 Fat. 209, Nihal v. Emperor, A.I.R. (13) 1926 ALL. 759, Kalia Goundan v. Emperor, A. I. E. (17) 1930 Mad. 859 & Kruparindhu Panigrahi v. Rex. 1 Cut. 751. I will now proceed to examine each one of the aforesaid decisions. The first case is Nand Kishore v. Emperor, A. I. R. (9) 1922 Pat. 209. There the proceeding drawn up by the Magistrate recited that it appeared from the report of the Sadar Inspector of Police that the second party, that is, the petitioners in the High Court, were likely to commit a breach of the peace or do a wrongful aot which may occasion breach of the peace inasmuch as the first & second petitioners personally & through their servants, the other petitioners & other men employed by them, were using threats of violence to the men of tbe first party. It was pressed in the High Court that the information given is too vague not supplying the necessary details which are required to inform the petitioners of the accusation that they have to meet & does not satisfy the tests laid down in the matter of Jaiprakash La!, 6 ALL. S6 & in Nagi-reddy Konda Reddy v. Emperor, 41 Mad. 246 In thie particular case, it appeared that the objection of inadequate notice of facts was taken in the written statement filed by the petitioners & the Magistrate nevertheless did not amend the proceeding It also appeared that relating to the self-same facts a defective proceeding under Section 107 had been drawn up by the Magistrate & the parties bad Once before come up to the High Court complaining against its defective character & a learned Judge of that Court in dealing with that earlier proceeding said that tbe responsibility of issuing notice under a. 112 is of the Magistrate & they found that the proceeding did not show that there was any information before the Magistrate entitling him to aot under Section 107. The learned Judge concluded after referring to the police report in these words:

'The Police report if it can be referred to in this connection, is little better. It does not give any details nor does it allege any recent acts of intimidation. It is too indefinite to be met & the petitioners are necessarily prejudiced by being called upon to meet vague allegations of this kind. It is difficult to avoid tbe conclusion that when the Magistrate, after having had his attention drawn by tbis Court to the necessity ot getting out the specific allegations to be met, has nothing more definite to say than what is contended in this proceed-ing, the proceeding in itself is without substance. The proceeding in this case does not satisfy me that there are any genuine tangible grounds for calling upon the petitioners to show cause why they should not be bound down to keep the peace & it must be set aside.'

However strongly expressed, the learned Judge has not clearly committed himself to the position that the proceeding necessarily becomes void for the lacuna of the kind referred to. It was for the repeated failure of the Magistrate-to come forward with substantial grounds for issue of show cause notice & for lack of materials in the Police report which was the basis of the order of the Magistrate that his Lordship came to the conclusion more as a question of fact than, as a proposition of law that there were no genuine tangible grounds for a security proceeding.

5. The next case relied upon by Mr. Pasayat is A.I.R. (13) 1926 ALL. 759, This case very strongly supports his conclusion. The case, however, was one under Section 110, Criminal P. C. but the learned Judge has laid down a general rule based upon the construction of Section 112, Criminal P. C. & cannot therefore be overlooked as irrelevant. Banerji J. quoted an observation from Walsh J, in the case of Emperor v. Rajbaksi, 42 ALL. 646:

'It is impossible to lay down any standard to which such notices (under Section 112) are to conform, but when the Legislature provided that a Magistrate should make an order in writing setting forth the substance of the information received, it certainly meant a great deal more than telling a man that he was a suspected thief, because, however substantial that expression may be as an offensive description of an individual, it gives, the person alleged to be of that character not the slightest intimation as to what are the grounds upon which it is based. If that notice is sufficient, all that would be necessary would be to call upon anybody in India to-show cause on the more statement that he was suspected by the policy to be a habitual thief but tbe procedure clearly requires something in the nature of an indictment or charge containing substantial particulars indicating the grounds upon which the police have given information to the Magistrate.'

Then His Lordship concluded in the following words:

'I am, therefore, of opinion that the action of the Magistrate in not recording the substance of the information he had received does not amount to a mere irregularity which would be covered by Section 537, Criminal P. C. as argued by the learned Assistant Govt. Advocate.'

In this view he held that the order passed against the accused binding them over to keep peace was quite irregular & was bound to be aet aside. He however left it open to the authority, which may so arise, (sic) to take up further proceeding against them according to law. Tbe next case is that of Kalia Goundan v. Emperor, A. I. R. (17) 1930 Mad. 859. This decision too, is not decisive & stands on the same footing as the decision of Ross J, of the Patna High Court just cited. I would quote the concluding portion of the judgment of Pandalai J.:

'In my opinion not only was there no attempt to state in substance the information received againstthe counter-petitioners, but the order contained nothing from which they could know the case that they would have to meet. The order, therefore, was clearly defective. This was nob, aa the Dindigul Magistrate thought, a merely technical defeat that it did not give the particulars or the reasons for apprehending a breach of the peace. On that ground the order ia liable to be set aside. But it has been argued for the Public Prosecutor that this defect does not vitiate the proceedings because it did not occasion a failure of justice. I do not question, at any rate I do not now want to question, whether a defect of this character is curable. But the question whether failure of justice has been occasioned in every oase is one of fact. In this case the objection was taken before the Magistrate himself, & that according to Section 537, is always a circumstance from which failure of justice may be inferred. Whether it was in fact occasioned in this case cannot be disputed because the counter-petitioners did not have the information they were entitled to possess in the early stage of the proceedings, & if they had possessed it at that time they might have met it successfully.'

It appears that that was a case which was tried till the end & according to the finding of the learned Judge the accused persons had no notice of the substance of the information which they could meet.

6. The last of the cases cited by Mr. Pasayat ia the one being the case of Krupasindhu v. Rex, 1 Cut. 751 at p 768. It was there contended that the order drawn up by the Magistrate was all too brief, vague & indefinite & does not give any clue to the petitioner as to the acts charged against him. Relying upon two decisions of the Madras High Court namely, Kutti Gowndan v. Emperor, 47 M. L. J. 689 and Kripasindhu Naiko v. Emperor, 8 M. L. W. 461 the learned Judge of this Court held that there should be sufficient indication in the order of the Magistrate of the time & place of the acts charged & sufficient details which should enable the accused to know the fact that he has to meet. It was then held:

'I have no doubt in my mind tbat the notice served on the petitioner is bad in law & is of no effect. But whether that would justify the quashing of the proceedings altogether at this stage is a matter on which I am not prepared to hazard an opinion. There ia no legal proceeding against the petitioner according to the view I have taken & the question of quashing of proceedings does not arise. Mr. Patnaik, has therefore, very adroitly conceded that if & when proper proceedings are drawn up against the petitioner, he will take the earliest opportunity of raising this question again & wanted to reserve liberty to move this Court for quashing of proceedings later.'

I must frankly confess: but I cannot make out what the rule of law is that is laid down. To me it appears that the learned Judge was personally of opinion that for such defects proceedings should not be quashed. Or, at any rate, he was not then advised to do so. But this expression of opinion stands modified by his expression tbat the notice is bad in law & is of no effect. I should, therefore, hold that this decision is not decisive on the point & Mr. Pasayat cannot derive as much help as be needs from it.

7. Against these, certain decisions of later date, I mean, later than the decisions of the Courts of Madras, Patna & Allahabad relied uponby Mr. Pasayat, had been cited by the learned Assistant; Govt. Advocate appearing for the State & Mr. B.K. Das appearing for the first party. Some of those decisions, if I can say so with respect, fully accord with my view & I would consider that those decisions lay down the golden mean between the two extremes, one of them being that if there is no substance of information, the entire proceeding from start is void & of no effect. The other extreme being that the accused is not entitled to the details of the information & any brief & coarse substance, however indefinite, will meet the requirements of law. I am quite sure, none of the extremes is correct. Of the decisions cited, the one to my mind which lays down the correct rule is that of Bhutnath Ghosh v. Emperor, 67 Cal. 503. That was a case in which at the first bearing of the motion by a Division Bench one of the learned Judges Graham J., took the extreme view that howsoever defective the notice may be, that will not vitiate the proceeding nor shall be taken to prejudice the accused. I can quote one sentence from his judgment. He says :

'I do not think that it was ever contemplated that the proceeding should set out details in the manner of a charge drawn up at a trial. The distinction between any enquiry of this nature & a trial should be borne in mind. I do not remember, in my experience, to have seen a proceeding in which particulars were set forth in the manner demanded by the petitioners.'

Suhrawardy J., after reviewing several authorities on the point observed :

'Though I hold that the law is satisfied if the notice contains the gist of the information & not a reference to cases & witnesses, proceedings under Chap. VIII should not be carried on in such a way as to hamper the offender in his defence & place him in a worse position than if he were accused of a substantive offence.'

Then he points out, how in case of inadequacy of the grounds for the proceeding, the accused will proceed with a due cross-examination of the prosecution witnesses. He says :

'One need hardly refer to the inconvenience & practical inutility of instructing the cross-examining pleader from the dock. As the procedure to be followed in the case was to be that prescribed for trial of warrant cases, it was improper to call upon the petitioner to cross-examine the witnesses then & there, who were immediately discharged.'

He ultimately concluded by saying :

'I do not mean to suggest that, on the evidence as it stands on the record, the petitioner is entitled to an acquittal, but I hold that the petitioner has made out a case that he has been prejudiced by the procedure adopted & that it is a proper oase for our interference. I would, therefore, make the Rule absolute, set aside the order complained against him & direct that the petitioner ba retried according to law.'

On difference between the two Judges, the matter was referred to a third Judge. C.C. Ghose J., who held:

'I have had an opportunity of examining the entire record & of perusing the two judgments of the learned Judges who have differed ia this matter. I am in agreement with Suhrawardy J., in the view expressed by him &, for the reasons given by him, I am of opinion that the ends of justice require that the order complained ofshould be set aside & the case sent back for retrial on the lines indicated by Suhrawardy J.'

It is clear that the proceeding was not held void & of no legal effect on account of defect in the notice.

8. I will make a reference to the decision of the Patna High Court to which Sir Dawson Miller, Kt. C. J. was a party in the case of Jai Singh v. Emperor, in 64 I.C. 666 (Pat). In the case before their Lordships of the Patna High Court no clear & definite information was given in the notice to the accused persons. While quoting from the Full Bench decision of In the matter of Jaiprakash Lal, 6 ALL. 26 that the information of the kind mentioned in Section 107 must be of a clear & definite kind directly affecting the person against whom process is issued & it should disclose tangible facts & details, so that it may afford notice to such person of what he is to come prepared to meet, his Lordship stated referring to the facts of that case that he waa quite satisfied that if that must be taken to have been so namely, that there waa defect or irregularity in the form of the notice served, there did not arise any degree of prejudice to the appellants in putting forward their case before the Magistrate, & that under the provisions of Section 537, Criminal P. C., the irregularity was curable & his Lordahip held that they have no power to reverse or alter the order made by the Magistrate in the case. The next caae is that of Bangali Ahir v. Chaturbhuj Prasad, A.i.r. (28) 1941 Pat. 241. That was a case decided by a Single Judge of the Patna High Court who held :

'Proceedings are liable to be quashed on such a ground at a preliminary stage, but not after the whole matter has been inquired into, unless there is reasonable suggestion of possible prejudice or unless the defect goes to the jurisdiction.'

He quoted with approval the case just cited by me, namely, the one reported in 64 I. C. 666 (Pat.) & ultimately held that the petitioners having been fully aware of what it was for which in the beginning they were going to be proceeded against & for which they were afterwards actually proceeded against, there was no prejudice & the application was liable to be dismissed. The next case worth noticing is one of the Madras High Court reported in In re Muthuswami Chettiar, A. I. R. (27) 1940 Mad. 23. In view of difference of opinion in the judgments of the different Judges of that Court, Patanjali Sastri J. made a reference & the judgment of the Full Bench waa delivered by Leach C. J. who came to the proposition which is to the effect that the decision in a particular case must depend upon the facts of the case & that their Lordships were unable to agree that the absence of such particulars, as the petitioners in that case wanted, would necessarily vitiate the notice. Their Lordships disagreed with certain views expressed by the Judges of that Court in cases reported in 1937 M.W.N. Cr. 189 & 59 M. L. J. 837.In the last named case Krishnan Pandalai J. considered that Section 112 requires the Magistrate to give an ''abstract of the facts upon which he charges the person proceeded against with being likely to commit a breach of the peace. If by an abstract is meant something more than the substance of the information we do not agree. His Lordship has expressed himself in the following worda in conclusion :

' The High Court has undoubtedly power to quash proceedings where the notice issued does not comply with the requirements of Section 112, but, before doing so it must be satisfied that there has been a failure to comply. It must be remembered that the issue of the notice is merely a preliminary step & no order can be passed under Section 107 unless the inquiry which follows the issue of the notice shows that the laying of the information was justified. The High Court can always interfere when the inquiry has not been held in accordance with the law or a wrong conclusion has been arrived at. Far too much stress has been laid in the past on the wording of the notice and too little regard paid to the safeguards provided by the subsequent prooedure.'

I wish that this decision should have been cited before my learned brother Panigrahi J. while he was hearing the case which was decided by him & his decieion is reported in 1 Cut. 751 already referred to. It seems to be not only the correct view about which there is concensus of opinion in all High Courts, but also seems to be the latest view so far as the Madras Court is concerned. Under the circumstances, some old cases should not have been cited, without inviting, to the notice of the Judge concerned, the latest Full Bench decieion. Counsel should understand always that they have a responsibility in arguing cases. I need not deal in detail with the other decisions cited by the learned Assistant Govt Advocate. But I should just catalogue them. They are Jagannath Prasad v. Emperor, A. I. R. (27) 1940 Nag 134 at p 135 col 2 and Emperor v. rasulbux, A. I. R. (29) 1942 sind 122 at pp 126 & 129. All these cases also do lay down that defect in the notice should not vitiate proceeding. It is a defeat which is curable provided there has been no prejudice to the accused.

9. Coming to the facts of the present case I have no hesitation in ruling that the notice does not strictly comply with the requirements of Section 112, Criminal P. C. It has been argued by the learned counsel for the opposite party that details of the overt acts need not be stated & the practical difficulty of such a course has also been advocated. But, however, we are bound by the words of the section which means substance of the information. Information is certainly something other than generalisation of the nature of the acts such high handedness, violence, harassment etc. To quote the words of Walsh J. in the Allahabad case on such a vague allegation any citizen of India could be called upon to show cause why he should not be bound down under Section 110, Criminal P. C. It is necessarily to be understood that there must be some past overtacts either completed or attempted or openlycontemplated or conspired which must give rise to the suspicion as to the future conduct of the accused in relation to his neighbours so that an apprehension of breach of peace or disturbance of the public tranquillity in tbe local limits of the jurisdiction of the Magistrate should be apprehended & besides, it has to be assumed thatsuch informations must be laid before the Magistrate, who, even at that stage, has to exercise the judicial act of parsing the preliminary order, Under the circumstances, it does not amount to (sic)ment of the law to keep those informants (sic) in dark as to substantive facts & just to (sic)ify them & give out general characters into which the particular acts can be classified. Now, the question arises, whether on those grounds the present proceedings ought to be quashed, I haveexamined the Police report & read the evidence of Bhagirathi Mohapatra. So far as the police report is concerned in one part it says that the members of the second party wanted to terrorise the first party & wanted to establish a goonda raj in the village Sanapadar. In a more detailed report of the activities of the members of the second party, it refers to their propagation of spreadingcommunist ideologies in the locality & formationof communist parties. The evidence adduced by the first party Bhagirathi Mohapatra seems to be largely at variance with the police report. The members of the second party large in number have thus been unduly harassed for a great lengthof time commencing from the month of September 1949.

10. Therefore, while holding that the notice is not void or of no legal effect & does not go to the root of the validity of the proceedings & while in such a case I should have been advised to direct the Magistrate to supply them substance of information before they could be called upon tocross-examine the witnesses, in the peculiar circumstances of the present case it will be expedient in the interests of justice to quash the proceeding & to release the petitioners. The Magistrate, however, may be well advised to start a fresh proceeding if their activities are such that there is still apprehension for breach of peace. When they do so, though they may not be required to give all possible details including times, places, names & number of witnesses of the overt acts, they cannot stop short at mere generalisation of the nature of overt acts but must state the very acts of themselves in such detail as will put the accused in adequate notice of what case they have to meet. They should be supplied with substance of the facts as has been observed by Subrawardy J. of the Calcutta High Court for the purpose of their information so as to enable the accused persons to know the charges that theyhave to meet. With these observations, I wouldallow the patition & quash the proceeding.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //