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Upendranath Kanungo and ors. Vs. State at the Instance of Hadibandhu Kanungo and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Ref. No. 15 of 1965
Judge
Reported inAIR1966Ori75; 1966CriLJ432
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 117 (3)
AppellantUpendranath Kanungo and ors.
RespondentState at the Instance of Hadibandhu Kanungo and anr.
Appellant AdvocateR. Mohanty, ;B.C. Panda, ;P. Chatterjee and ;S.K. Mohanty, Advs.
Respondent AdvocateGovernment Adv. and ;S.H. Kanungo and ;R. Mohanty, Advs. (for com. 1)
DispositionReference accepted
Cases ReferredAmir Singh v. State
Excerpt:
.....until the enquiry is concluded. the only safe-guard prescribed in the sub-section is that he must record his reasons in writing. there is nothing in section 117 to indicate that the magistrate must take some preliminary evidence before taking action under sub-section (3). a police report or any other material may be sufficient to satisfy the magistrate that it is necessary for him to take action under that sub-section, and there will be absolutely no illegality if he takes action after being so satisfied on the material which is before him......was manifestly passed under section 112, cr. p. c. on 25th april 1964 the members of the first party filed an application praying for calling upon the members of the second party to execute interim bonds under section 117 (3), cr. p. c. on 20th april 1964 the members of the second party filed objection to the execution of interim bonds. on 6th may 1964 parties were heard on the question of execution of interim bonds by the members of the second party. the report of the police stating that interim bonds should be taken from the members of the second party was placed before the court. an order was passed to the effect :' the police report does not show the overt acts committed by the delinquents. he has given only a list of station diary entries. call for the detailed report by 9th may.....
Judgment:
ORDER

G.K. Misra, J.

1. On the report submitted by the Officer-in-Charge, Chowduar Police Station, the S. D. O. Sadar, Cuttack drew up a proceeding under Section 107, Cr. P. C. on 21st March 1964. He made an order in writing setting forth the substance of the information received which was to the effect that on account of village party faction the members of the second party have formed a strong combination against the members of the first party and have been committing various overt acts leading to breach of peace. He issued notices to the members of the second party to appear in his court to show cause as to why each of them should not be ordered to execute a bond for Rs. 500 with one surety for the like amount to keep the peace for a period of one year. This order was manifestly passed under Section 112, Cr. P. C. On 25th April 1964 the members of the first party filed an application praying for calling upon the members of the second party to execute interim bonds under Section 117 (3), Cr. P. C. On 20th April 1964 the members of the second party filed objection to the execution of interim bonds. On 6th May 1964 parties were heard on the question of execution of interim bonds by the members of the second party. The report of the Police stating that interim bonds should be taken from the members of the second party was placed before the Court. An order was passed to the effect :

' the police report does not show the overt acts committed by the delinquents. He has given only a list of station diary entries. Call for the detailed report by 9th May 1964 '

A detailed report referring to the overt acts was submitted by the Police. On 14th May 1964 the members of the second party filed their objection and affidavits of five persons, namely, Raghabananda Das, Gobinda Chanda Panda, Bhikari Mallik, Joyram Samal and Brajabandhu Biswal. These affidavits were filed in connection with the show-cause order regarding execution of interim bonds under Section 117 (3). The order dated 14th May 1964 refers to these affidavits and objection filed. On 6th June 1964 learned S.D.O. came to the conclusion that the delinquents should be kept on interim bonds. He accordingly ordered that all the delinquents (the members of the second party), should execute interim bonds for Rs. 500 with one surety for the like amount each to keep the peace during the period of the pendency of the proceeding. Notices were issued to them to appear on 17th June 1964 and to execute bonds without fail.

Against this order, Criminal Revision No. 17C of 1964 was filed in the court of the Sessions Judge of Cuttack, who, by his order dated 3rd March 1965, allowed the revision and made a reference to this Court for quashing the order of the learned S. D. O. dated 6th June 1964.

2. The order dated 6th June 1964 has given the reasons why the learned S. D. O. called upon the members of the second party to execute interim bonds of Rs. 500 under Section 117 (3), Cr. P. C. He mainly relied on the report dated 10th April 1964 of the Officer-in-charge which referred to a series of overt acts committed by the members of the second party. The learned Sessions Judge recommended the quashing of this order mainly on the grounds that the affidavits, filed on behalf of the members of the second party, had not been taken into consideration by the learned S. D. O. and that no affidavits were filed on behalf of the members of the first party or by the police in support of the assertion that the various overt acts, as mentioned in the Station Diary entries, were correct. On these grounds the learned Sessions Judge allowed the revision and made the reference.

3. This necessitates examination of the scope of Section 117 (3), Cr. P. C. It enacts that pending 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 112 has been made to execute a bond with or without sureties, for keeping the peace or maintaining good behaviour until conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the enquiry is concluded.

The magistrate is mainly responsible for prevention of the breach of the peace. He is the sole judge whether immediate measures are necessary for prevention of breach of the peace pending completion of the inquiry. The sub-section does not prescribe that the Magistrate would start a further enquiry and take evidence while asking for execution of interim bond. It is open to him to ask for execution of interim bond merely on the basis of the police report, if, on application of his mind, he considers that immediate measures are necessary for prevention of breach of the peace. The only safe-guard prescribed in the sub-section is that he must record his reasons in writing. This provision has been made to see that he does not mechanically follow the police report, but applies his mind to determine that the emergency exists calling for immediate measures during the pendency of the inquiry. This is the only restriction imposed on him. The learned Sessions Judge is not correct in his view that the Magistrate cannot act upon the overt acts mentioned in the Station diary entries unless those are corroborated by some affidavits filed either by the police or by the particular party in whose favour the police report stands. In AIR 1962 Pat 51 Amir Singh v. State, a learned single Judge observed:

'There is nothing in Section 117 to indicate that the Magistrate must take some preliminary evidence before taking action under Sub-section (3). A police report or any other material may be sufficient to satisfy the Magistrate that it is necessary for him to take action under that sub-section, and there will be absolutely no illegality if he takes action after being so satisfied on the material which is before him.'

This represents the correct view. The second reason given by the learned Sessions Judge to quash the order of the Magistrate cannot be supported.

4. The learned Sessions Judge's view that the order cannot be supported as the Magistrate had not taken into consideration the affidavits filed by the members of the second party, while showing cause against furnishing interim bond, has, however, considerable force. When the second party members were called upon to show cause against furnishing interim bond, it was open to them to file affidavits challenging the correctness of the police report. It was open to the learned Magistrate, without further inquiry, to have rejected those affidavits after applying his mind thereto. But it was not open to him to ignore them. The final decision taken by him becomes vulnerable on account of non-application of his mind to the relevant materials on record. Though in the matter of taking interim bond the Magistrate is not called upon to conduct evidence of witnesses on oath, and their cross-examination in the usual manner, he is, however, not entitled to exclude from consideration the affidavits filed by a party in support of his cause shown against the furnishing of interim bond. Due to this lacuna the Magistrate's order is contrary to law and he has exercised his jurisdiction with material irregularity. The case is to go back to him for consideration if the second party members are to be called upon to furnish interim bonds after taking into consideration the Police report and the affidavits filed by the second party members in that regard. Once he takes a view upon consideration of the relevant materials and records the reasonings as required, it is not open to this Court to interfere in revision.

5. For reasons given the reference is accepted. The case is remanded to the learned Magistrate for consideration as directed above. It is open to the Magistrate to pass such orders regarding furnishing of interim bonds as he deems necessary after taking into consideration the relevant materials on record.


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