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Budhu Ram and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ497
AppellantBudhu Ram and ors.
RespondentState of Orissa
Cases ReferredSona Khan v. State
Excerpt:
.....being satisfied that there was likelihood of apprehension of breach of peace, initiated a proceeding under section 107 of the criminal p. - the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. that concept is out-dated and experience has shown that it has done more harm than good. ..if a magistrate is satisfied after making an enquiry into the condition and background of the accused, that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own..........of rs. 30,000/- and not to rs. 35,000/-, the bail application moved by the seven of the second party members was rejected and the delinquents except the female member, guhi gramin, were directed to be taken into jail custody. some time later that day, the delinquents produced another bailor, who was solvent to the extent of rs. 50,000/-and the magistrate directed their release on bail.2. curiously, however, before actually setting them free, the magistrate directed the second party members, who appeared before him that day, to execute interim bonds forthwith for rs. 5,000/-each for keeping peace. the counsel for the petitioners submits that the second party members who were still in custody had no other alternative, but to execute the bonds and they were enlarged on bail.....
Judgment:
ORDER

R.C. Patnaik, J.

1. On a report dated 23-1-79 submitted by the Officer-in-charge of Kalunga Police Station in the district of Sundergarh, the Magistrate being satisfied that there was likelihood of apprehension of breach of peace, initiated a proceeding Under Section 107 of the Criminal P. C. against the petitioner Nos. 3 to 7 and three others. That very day, an application was filed by the Officer-in-charge alleging that the members of the second party were illiterate advisasis and, therefore, they should be taken into custody by a direction for their immediate arrest, under the proviso to Section 113 of the Cr. P. C. and the learned Magistrate issued non-bailable warrants of arrest against them. On 21-2-79 the members of the second party except Bhona Topu in fear of arrest, appeared before the Magistrate and made a motion for being enlarged on bail. They were asked by the Magistrate to produce bailors without directing in his order or intimating the party for what amount each was to be enlarged on bail. One Budhuram Oram was offered as a bailor and on the materials placed before the Magistrate, he found that the said bailor was solvent to the extent of Rs. 30,000/-, but rejected him on the ground that he was not solvent to the extent of Rs. 35,000/-, i. e. at the rate of Rs. 5,000/- for each member. According to the petitioners, the record is replete with acts and omissions constituting harassment of the members of the second party who were illiterate adivasis. However, when it was found that the bailor was solvent only to the extent of Rs. 30,000/- and not to Rs. 35,000/-, the bail application moved by the seven of the second party members was rejected and the delinquents except the female member, Guhi Gramin, were directed to be taken into jail custody. Some time later that day, the delinquents produced another bailor, who was solvent to the extent of Rs. 50,000/-and the Magistrate directed their release on bail.

2. Curiously, however, before actually setting them free, the Magistrate directed the second party members, who appeared before him that day, to execute interim bonds forthwith for Rs. 5,000/-each for keeping peace. The counsel for the petitioners submits that the second party members who were still in custody had no other alternative, but to execute the bonds and they were enlarged on bail thereafter.

3. Bail amount of Rs. 5,000/- in a proceeding Under Section 107 of the Criminal P. C. and especially when the delinquents are illiterate adivasis exhibits an attitude of judicial arbitrariness deprivatory of liberty. It is worth recalling the words of the Supreme Court:-. the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem is plainly one of human rights, especially freedom vis-a-vis the lowly.

The Supreme Court, referred with approval, to certain observations made in the report of the Legal Aid Committee appointed by the Government of Gujarat in 1971. The following observations are worth bearing in mind;-.The Magistrate must always bear in mind that monetary bail is not a necessary element of the criminal process. The Magistrate must abandon the antiquated concept under which pre-trial release could be ordered only against monetary bail. That concept is out-dated and experience has shown that it has done more harm than good....If a Magistrate is satisfied after making an enquiry into the condition and background of the accused, that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own recognizance....

And in that context the Supreme Court reminded the Gandhian talisman;

Whenever you are in doubt...apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him,' Law at the service of life, must respond interpretatively to raw realities and make for liberties.

To demand bonds of Rs. 5.000/- or sureties in the sum of Rs. 5,000/- from illiterate indigent adivasis was itself stultifying the provision of bail and the rights of the delinquents in a proceeding Under Section 107 of the Criminal P. C.

The Supreme Court further held :

Even so, the poor men - Indians are, in monetary terms, indigents - young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances -- put whatever reasonable conditions you may.

Illiterate adivasis belong to a weaker segment of our society. The treatment meted out to them by the Magistrate shocks my conscience. He may, however, be given the benefit of doubt for not fully appreciating, borrowing the words from the very Supreme Court decision, 'that our Constitution, enacted by 'We' the People of India', is meant for the butcher, the backer and the candle-stick maker - shall we add, the bonded labour and pavement dweller add another category, the adivasis of this Country, who have been neglected and exploited for ages, (see Motiram v. State of Madh Pra : 1978CriLJ1703 .

4. The events narrated above leave no doubt that the Magistrate grossly offended against the mandatory provisions contained in Sees. 112, 114 and 116 of the Criminal p. c. and exhibited a total lack of judicial approach and of human feelings. When the second party members appeared before the Magistrate on 21-2-79. neither was the order read over, the substance thereof explained, nor was a copy of the order delivered to them intimating them the substance of the information received by the Magistrate on the basis whereof the proceeding Under Section 107 had been started. Counsel for the second parly members submits that the petitioners were kept totally in dark. After their appearance in court, harassment upon harassment was piled on the members of the second party and according to him, the events of 21-2-1979 did not not put a finish to the episode of suffering meted out by the Court. It appears that the case was adjourned on some dates and posted to 14-6-79 for filing of show cause. That day, an application for adjournment was filed on behalf of the members of the second party through their counsel. No sooner he filed the petition, he faced a report submitted by the Officer in-charge, which had been called for by the Magistrate on a petition filed by the first party, Harikishan Agarwal, on 12-6-79. A copy of the said application had not been served on the members of the second party or their counsel. They had no notice of the said petition or the action taken by the Magistrate. The order passed by the Magistrate appears to have been passed by an endorsement on the petition and thus, there was no mention of any order having been passed on 12-6-79 in the order-sheet. The counsel for the second party members submits that such a step was taken behind the back of the members of the second party so that an adverse report could be obtained by the next date fixed so that the members of the second party could be further harassed. On 14-6-79, the Magistrate after perusing the report and affidavit filed on behalf of Sri Agarwal. held that the members of the second party had violated the conditions of the interim bonds executed by them and, so holding, the learned Magistrate forfeited the bonds of Sakari Oram, Puran Oram, Bitra Oram, Temba Oram and Choga Oram and directed non-bailable warrants to issue. By the very order, he held that petitioner No. 2 and three others (not already parties) were to be bound down as delinquents in the 107 proceeding pending before him and directed non-bailable warrants to issue against them.

5. Sri R.N. Das, learned Counsel for the petitioners, submits that the proceedings in this case are replete with gross violation of the mandatory provisions of the Code of Criminal Procedure and injudicious attitude and orders.

6. The stage when a party against whom a 107 Cr. P. C. proceeding has been started, can be called upon to execute interim bond has been authoritatively laid down by the decisions of the Supreme Court in the cases of Madhu Limaye v. Ved Murti AIR 1971 SC 2481: 1971 Cri LJ 1715 Madhu Limaye v. Sub-Divisional Magistrate, Monghyr : 1971CriLJ1720 and Govinder Singh Verma v. Mrs. Bachubhai T. pestonji : 1972CriLJ316 . A Full Bench of this Court considered the aforesaid decisions in the case of Sona Khan v. State (1980) 50 Cut LT 245 : 1981 Cri LJ 39 at p. 43 and held:-.It is clear that an order under Sub-section (3) for furnishing of bond can be made only after the commencement of the enquiry and before its completion provided the allegations forming the basis of the parent proceeding or the allegations leading to the necessity for furnishing of interim bonds are tested by inquiry and judicial mind is applied for ascertaining whether there is prima facie justifiable basis for such a direction.

this Court further held;- (at p. 46 of Cri LJ).

Inquiry does not commence as soon as the delinquent appears and the notice Under Section 112 of the Code of Criminal Procedure is read out to him. The Supreme Court has emphasised on the position that bare allegations cannot form the foundation of the order for a bond and failing furnishing of it detention of the delinquent...but the mandate of law is that the inquiry must commence and the Magistrate must proceed to ascertain the truth of the allegations by application of his judicial mind and look for materials which would substitute allegations into facts. The inquiry contemplated is an acceptable legal process by which allegations can be converted into facts. What that process would be should be left to the discretion of the Magistrate with reference to facts of each case, but he must adopt an acceptable judicial method for testing the allegations and recording findings of fact with reference to the acceptability or otherwise of such allegations.

7. The lower court record reveals that requirements of law were thrown to the winds. When the second party members appeared on 21-2-79, neither was the order read out to them nor was a copy of the order delivered. As soon as the delinquents produced bailors acceptable to the court, they were called upon to execute interim bonds. There can be little doubt that the stage contemplated by Sub-section (3) of Section 116 had not been reached. There had been no commencement of enquiry.

8. The Magistrate committed a further grave mistake by calling upon the second party members to execute interim bonds without there being any material in addition to those which were already before him by the time of initiation of the proceeding on 20-2-79, On the self-same materials on which he initiated the proceeding under Sec, 107 Cr. P. C., he directed the second party members to execute the bonds. The procedure adopted is not the mandate of the law, repeatedly brought home to those entrusted with administration of the security provisions of the Code of Criminal Procedure, by authoritative pronouncements of the Supreme Court and this Court.

9. Before a direction for furnishing of interim bonds can be given, not only the enquiry must have commenced, but the Magistrate should have tested the allegations by an enquiry and applied his judicial mind to ascertain whether there is prima facie .justifiable basis for such a direction. this Court held:- (at p, 47 of 1981 Cri LJ).Commencement of inquiry starts when the Magistrate attempts in a legal way to put the allegations to test for finding out whether they are the facts....Raw allegations cannot constitute the foundation for an order Under Section 117(3) of the Code (old Code). The Magistrate has to make a genuine attempt to test the correctness of the allegations and judicial mind has to be applied and procedure known to law has to be followed for testing the correctness of the allegations and finding out how much thereof is factual. The factual basis must be the foundation for the judicial satisfaction that an order for a bond under Sub-section (3) is necessary.

10. The Magistrate has not borne in mind these mandatory requirements of law while calling upon the members of the second party to execute interim bonds. My conclusion is that on 21-2-79, neither had the enquiry commenced nor did the Magistrate make any attempt to test the correctness of the allegations and the entire proceeding of that day culminating in a direction for interim bonds was done in an injudicious and arbitrary manner. The -direction for interim bonds was, therefore, without jurisdiction, and a nullity. The bonds executed being nullities, question of forfeiture thereof does not arise.

11. It is also curious to note that in the proceeding started against the second party members, the petitioner No. 2 and three others were suddenly added by order dated 14-6-79 without there being any preliminary order as required by law and non-bailable warrants of arrest were directed to issue. The petitioner No. 2 and three others rightly made a complaint that the Magistrate has been acting arbitrarily in defiance of the provisions contained in the Code of Criminal Procedure and, as such, this Court should exercise the re-visional jurisdiction and quash the said order. I am convinced that the order dated 14-6-79 in respect of petitioner No. 2 and three others is illegal and should be vacated, if on account of the acts of these 4 persons there is apprehension of breach of peace in the locality still, the Magistrate may initiate a separate proceeding in respect of them.

12. In the appeal filed by the petitioners, the learned Sessions Judge, Sun-dargarh, rightly held that no appeal lay against the order directing execution of interim bonds and regarding impletion of petitioner No. 2 and three others as parties and so holding dismissed the appeal as not maintainable. This revision is, therefore, treated as one Under Section 482 of the Criminal P. C.

Holding that the direction for execution of interim bonds was a nullity, I quash the order directing execution of interim bonds and forfeiture thereof. Two years in the meanwhile have elapsed. I direct the Magistrate to take into consideration the prevailing circumstances and the provisions contained in Sub-section (6) of Section 116 and deal with the case according to law.


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