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Udayanath Mansingh and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in34(1968)CLT391; 1968CriLJ844
AppellantUdayanath Mansingh and ors.
RespondentState
Cases ReferredUpendranath v. State. The
Excerpt:
.....ordinary step. the state it was further held that the magistrate would not be justified in calling upon the accused to execute interim bonds merely because the police report recommended it......under section 107, criminal p.c. is started. the tension is very high as is evident from the police reports filed and immediate measures are necessary for the prevention of breach of the peace. hence it in ordered that the delinquents are to execute interim bonds under section 117(3), criminal p.c. for rs. 200 each with a surety for the like amount in each case to keep peace till the disposal of the proceedings.3. section 117(3), criminal p.c. lays down the conditions on the fulfilment of which the magistrate can proceed to requite execution of interim bonds. that provision runs as follows:23. 117(3). pending the completion of the inquiry under sub-section (1) the magistrate, if he considers that immediate measures are necessary for the prevention of breach of the peace of.....
Judgment:

S.K. Ray, J.

1. This is an application by 26 petitioners against the order dated 21.10.67 passed by Sri K.M. Das, Sub-divisional Officer and Magistrate, 1st Class, Puri, in Cri. Misc. Case No. 129/67. requiring each of the petitioners to execute interim bonds under Section 117(8) of the Code of Criminal P.C.

2. On the report of the Sub-Inspector of Police, Bramhagiri Police Station, dated 30.6.62, a proceeding under Section 107, Criminal P.C. was drawn up on 18.9.67 against 32 persons including the 26 petitioners, who in the said report, were arrayed as members of the second party. The report of the Sub-Inspector of Police, was received is the office of the Circle Inspector Puri, on 8.7.96, and the Circle Inspector made an endorsement thereon on 6.7.87 recommending action under Section 107 and also directing steps to be taken under Section 117(8), Criminal P.C. The report containing the endorsement of the Circle Inspector reached the Court of the S.D.O. on 19.7.67 as appears from the seal of the Court and the proceedings under Section 107, Criminal P.C. were drawn up two months later. Thus it appears that it took about two and a half months for initiation of the proceeding from the date the police made the report and thereafter it took 12 days for notice under Section 107 to be issued from the office of the S.D.O. While the matter stood thus, the officer-in-charge, Brahmagiri Police Station, filed an application in the Court of the Sub-divisional Officer on 21.10.67 praying for Action to be taken against the second party-members under Section 117(3), on which the Magistrate passed the following order:.The case is that the Gopals do not want to carry the palanquins of the Khandayats, as a result communal tension started between the two groups and there was 107, Criminal P.C. proceedings. This ended in a compromise. Again the tension ban flared up for which fresh proceedings under Section 107, Criminal P.C. is started. The tension is very high as is evident from the police reports filed and immediate measures are necessary for the prevention of breach of the peace. Hence it in ordered that the delinquents are to execute interim bonds under Section 117(3), Criminal P.C. for Rs. 200 each with a surety for the like amount in each case to keep peace till the disposal of the proceedings.

3. Section 117(3), Criminal P.C. lays down the conditions on the fulfilment of which the Magistrate can proceed to requite execution of interim bonds. That provision runs as follows:

23. 117(3). Pending the completion of the inquiry under Sub-section (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of breach of the peace of 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 the conclusion of the inquiry....

On a plain reading of this sub-section, it is clear that if the Magistrate considers that immediate measures are necessary:

(a) for prevention of a breach of the peace

(b) for prevention of disturbance of the public tranquillity;

(c) for prevention of the commission of any offence; or

(d) for maintaining public safety,

he gets jurisdiction to pass an order for execution of interim bond under this provision of law, which again requires that the Magistrate when he passes such an order, he must record his reasons in writing.

4. The principles to be followed by a Magistrate acting under Section 117(3), Cr.P.C. have been laid down from time to time by this Court. It has been held in (1956) 22 Cut L T 508 : 1957 Cri LJ 147 Munshi Ghafur Khan v. Saratullah that the reasons for initiating the proceeding under Section 107, are not always the same as the reasons for calling upon a party to execute a bond. Before deciding to bind down a person during the pendency of Section 107 proceeding, the Magistrate must be satisfied that the person is prone to extremely unruly conduct and shows inclination to commit acts of violence, and to reach a satisfaction the Magistrate must apply his judicial mind to all facts and circumstances appearing in the case and record his reasons in writing for taking such an extra ordinary step. His order must show that he applied his judicial mind and did not act mechanically. While reiterating these principles, in AIR 1861 Orissa 58, Jadumani Sahu v. The State it was further held that the Magistrate would not be justified in calling upon the accused to execute interim bonds merely because the police report recommended it. This was again repeated in the case of Jagannath Bisoi v. The State, reported in 31 Cut LT 777 : 1965 (2) Cri LJ 880, where it was held as follows:

It is essential for the Magistrate that he would apply his mind to consider if immediate measures are necessary. It is possible for a Magistrate take a view different from the report made by the officer-in-charge despite allegation of overt acts. A further condition his also been added that the Magistrate must record his reasons in writing. Both these elements require the Magistrate would apply his judicial mind to the facts of the case and then determine it immediate measures are necessary and interim bonds are to be called for.

In acting under Section 117(3) it is not necessary that the Magistrate must take some preliminary evidence but if any cause is shown by persons affected through affidavits or other materials, against execution of interim bonds, the Magistrate is bound to take them into consideration before finally deciding his course of action. This view finds support from the case reported in 82 Out LT 742 : A I R 1966 Orissa 75, Upendranath v. State. The impugned order shows that none of these principles enunciated above, has been followed by the Magistrate on the contrary, it shows that they were completely disregarded.

5. There are significant features in the cape ending to rebut the police report that immediate measures were necessary for prevention of breach of the peace. One such feature is that the police report which was drawn up on the 80th of June 1967, and which bore the endorsement dated 6th July 1967 of the circle Inspector, recommending notion under Section 117(3) crawled to the Court of the S.D.O. Puri in course of two and a half months and even on 18.9.67 when the 107 proceedings were initiated no prayer for interim bonds wag made, even though according to the police immediate measures were necessary as on 8.7.87. It may be presumed that necessity for immediate measures disappeared when the Magistrate drew up the proceeding on 18.9.67, since no prayer for interim bonds was made at that time. Subsequently, the local police moved the S.D.O. for execution of interim bonds by the petitioners and other members of the second party on the basis of certain station diary entries most of which were in existence prior to 18.9.67. Non consideration of such and similar features in the case demonstrate that the Magistrate passed his order mechanically. He says that he heard the advocates and the P.I. and that it became evident from the police report that the tension is very high. Such averments in the impugned order, without noticing the many telling circumstances in the case against furnishing of interim bonds by the petitioners, show that the Magistrate has formally complied with the requirements of the law, forgetting its essentials which have been so carefully and repeatedly pointed out by this Court from time to time. When the High Court lays down any law, it is primarily for the guidance of the Courts below be that the citizens of the State may not be harrassed in coming up again to this Court for setting aside wrong orders, passed in disregard of the correct legal principles. Accordingly, the order dated 21.10.67 passed by Sri K.M. Das, S.D.O., Puri is quashed and the revision is allowed.

6. The Magistrate should, however, note that this quashing his order will not be a bar to his acting under Section 117(3) in future, if circumstances-be warrant.


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