1. This is a reference by the Additional Sessions Judge of Cuttack, for setting aside an interim order under Section 117(3) of the Criminal P. C., passed by the Sub-divisional Magistrate, of Jaipur under the following circumstances:
2. On 28-2-1956, the Sub-divisional Magistrate received a report from the S. I. of Police, Barchana, praying for action under Section 147 of the Criminal P. C. against thirty persons. In that report the police prayed not only for drawing up proceedings under Section 107, but also for taking interim bonds from the second party under Section 117 of the Criminal P. C. On receipt of that report the Sub-Divisional Magistrate passed the following order on that date:
Report under Section 107, Criminal P, C. submitted by the S. I. of Police, Barchana P.S. seen. It appears that the members of the 2nd party have formed a strong combination against the 1st party and have been committing various overt acts.
I am satisfied that they are likely to commit breach of the peace.
Draw up a proceeding under Section 107, Cri. P. C., and call upon the members of the 2nd party to appear in any Court on 11-3-1956, and show cause as to why each of them should not be ordered to execute a bond for Rs. 300/- with one surety for each, for the like amount, to keep the peace for a period of one year. They are hereby further directed to execute interim bonds of the above description to keep the peace during the pendency of this proceeding.
3. The learned Additional Sessions Judge has rightly pointed out that the learned Magistrate has not recorded his reasons in writing for passing an order under Section 117 (3), Criminal P.C. If, on receipt of the Police report, the Sub-divisional Officer considers that preventive action under Section 107 of the Code should be taken, he is undoubtedly entitled to issue notice under Section 112 calling upon the persons concerned to show cause why he should not be directed to execute a bond for the sum specified in the order, for the purpose of maintaining peace.
If he further considers that the apprehension of breach of peace is so imminent that even during the pendency of the proceeding under Section 107, an interim bond should be taken from a party ha should act in accordance with the provisions of Sub-section (3) of Section 117 and record in writing separate reasons for taking such an extraordinary step, and then call upon the party concerned to execute the interim bond required.
It should be remembered that the reasons for drawing up proceedings under Section 107 of the Criminal P, C. may not be the same as the reasons for calling upon a party to execute an interim bond under Section 117(3).
It is true that both steps may be taken on the basis of a police report, but the reasons may be quite different and the law requires that they should be recorded in writing. Ordinarily the mere fact that a proceeding under Section 107, Criminal P. C. has been started against a person and he has been called upon to show cause why he may not be bound down to maintain peace would have a statutory effect on him during the pendency of the proceeding, and there may not be further necessity to take an interim bond from him under Section 117 (3). Doubtless, special circumstances may arise whore, notwithstanding the initiation of a proceeding under Section 107, it may be necessary to bind down a person during the pendency of that proceeding by taking an interim bond under Section 117 in view of his extremely unruly conduct and inclination to commit acts of violence.
It is for this reason that the law requires that the Magistrate, before calling upon a person to execute an interim bond under B. 117(3) Criminal P. C. must specially apply his mind to this aspect and give his reasons, in writing, for taking such an extraordinary step. An order under Section 117(3) should not be mechanically passed along with an order under Section 112, Criminal P. C. In the present case the Magistrate has not applied his judicial mind to the special question as to whether an interim bond under Section 117(3) was really necessary.
4. It is doubtless open to the Magistrate to consider afresh the question of taking an interim bond from a party, if he thinks that apprehension of breach of peace during the pendency of the proceeding cannot be otherwise averted.
5. I would, therefore, accept the reference and set aside that portion of the order of the Sub-divisional Magistrate, dated 28-2-1956, which relates to the taking of an interim bond from the petitioners.