from the Police report dated- of P.S. Tugh Rd. it appears that while the public tranquillity in Delhi is disturbed, you Tara Chand son of Johari Lal at- which is a wrongful act so provocative that it may occasion breach of the peace or public tranquillity;
2.I am, thereforee, of the view that immediate measures are necessary for the prevention of the breach of the peace or disturbance of public tranquillity of the commission of any offence or for public safety. Accordingly, I under Sub section 3 of Section 117 Criminal Procedure Code . direct you the said Tara Chand to execute a personal bond in the sum of Rs. 5,000.00 with two sureties in the like amount, for keeping peace until the conclusion of enquiry failing which you shall be detained in custody until such bond is executed or, in default of execution, until such enquiry is concluded.
ANtoHERorder was passed by the Magistrate. According to that order also dated the 15th January, 1968, the orders under section 117 and section 107 of the Code were read out and explained to the petitioner and he was directed to be released on bail on furnishing a personal bond and one surety of Rs. 5,000.00. That order reads as follows :--
'15-1-68:Respt. present in police custody. Psi present. He is allowed to be released on bail on furnishing p.b. and one surety of Rs. 5,000.00. Ntoice u/s 107 Criminal Procedure Code read over and explained.
NtoICE u/s. 117 Criminal Procedure Code . read over and explained.
(6) Three persons, named Dr. Dharam Veer, Shri Vishan and Shri D. D. Singh, offered themselves as sureties but the surety bonds furnished by them were nto accepted. Regarding Dr. Dharam Veer and Shri Vishan it was remarked by the learned Magistrate that they were nto in a position to keep control over the petitioner and their identity had nto been established. The third surety was rejected because he was nto considered to be of good financial position. Thus the surety bonds nto having been accepted the petitioner has been in detention from the date of his arrest.
(7) Under section 107 of the Code whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner provided in the Code, require such person to show cause why he should nto be ordered to execute a bond with or without sureties for keeping the peace for such period nto exceeding one year as the Magistrate thinks fit to fix. When the Magistrate acting under section 107 deems it necessary to require such person to show cause under that section he had to make an order in writing, under section 112 of the Code, setting forth the substance of the information received, the amount of the bond to beexecuted, the term for which it is to be in force and the number, character and class of sureties (if any) required to be produced. When the person in respect of whom order under section 112 of the Code is made is present in court that order has to be read over to him or if he so desires the substance thereof is to be explained. Section 117 of the Code gives power to a Magistrate, pending completion of the inquiry into the truth of the information upon which action has been taken, if he considers that immediate measures are necessary for prevention of breach of the peace or disturbance of public tranquillity or the commission of any offence or for the public safety, for reasons to be recorded in writing, to direct the persons concerned to execute a bond, with or without sureties, for keeping the peace or maintaining good behavior until the conclusion of the inquiry. Until such bond is executed or in default of its execution the person in respect of whom an order under section 112 of the Code was made may be detained in custody till the inquiry is concluded.
(8) In the order to be made under section 112 of the Code the substance of the information received has to be set forth. The object evidently is to enable the person concerned to meet the case against him. Compliance with these requirements of law as well ensures application of mind by the Magistrate to the circumstances of the case before preventive action under section 107 of the Code is initiated. In the order issued by the learned Magistrate, however, the only particulars given were as under :
'ON14-1-68 you threatened'.
(9) It was nto mentioned who was threatened, where that threatening took place and under what circumstances. Thus for all practical purposes the substance of the information received by the Magistrate was nto set forth in the order.
(10) The order passed under section 117 of the Code was still more irregular. The learned Magistrate did nto btoher to see that he was using a cyclostyled form of antoher Magistrate and that even the title of the case was nto written therein. The date of the police report was nto mentioned and the portion where particulars of the alleged wrongful acts of the petitioner were to be given was left completely blank.
(11) The order passed by the learned Magistrate after the so-called 'ntoices' under sections 107 and 117 of the Code had been read out and explained to the petitioner directed that the petitioner be released on furnishing a personal bond of Rs. 5,000 with one surety of Rs. 5,000.00. In the formal order under section 117 of the Code, however, no such change was made with the result that the petitioner was required to furnish two sureties in an amount of Rs. 5,000.00 each instead of one surety of Rs. 5,000.00.
(12) There is ntohing on the record to show on what basis the learned Magistrate came to the conclusion that Dr. Dharam Veer and Shri Vishan, who had offered themselves as sureties for the petitioner, were nto in a position to keep control over him. One of them had stated on affidavit that he was owner of shop No. 14, Purani Market, Malviya Nagar, of the value of Rs. 15,000. The toher surety claimed to be owner of house No. 1317/18, in Darya Ganj area, of the value of Rs. 20,000.00 on which a house tax of Rs. 30.00 per annum was being paid by him. It appears that the learned Magistrate acted arbitrarily in rejecting the surety bonds without any justification.
(13) Shri V. D. Misra, who appeared for State, urged that omission to record reasons for directing a person in respect of whom an order under section 117 of the Code has been made to execute a bond without or with sureties for keeping the peace until conclusion of the inquiry does nto necessarily make the order illegal. Amir Singh v. The State Hatim Khan and tohers and Thirunavukkarasu and toher petitioners v. The State were cited.
(14) Hatim Khan's case did nto deal with an order under section 117 of the Code where reasons may nto have been recorded. In Amir Singh's case it was observed that it was wrong to omit to record in writing for taking action under subsection (3) of section 117 of the Code but even so the High Court will nto interfere with the order if the several proceeding orders leading to the impugned order read together with the police report clearly showed that there were good grounds for the Magistrate taking action under sub-section(3) of section 117 of the Code and thus there was substantial compliance with the requirements of the section. Ramaswami J. in the case of Thirunavkkarasu remarked that an order under section 117 of the Code was nto a mere routine order but was an order designed to meet an emergency and that the Magistrate must direct his consideration particularly to the question of emergency and the necessity of immediate measures as a separate case. An order under sub-section (3) of section 117 of the Code passed after considering the question of emergency as a separate question, was, however, nto regarded to be had merely because the Magistrate had based it on the same information which was the basis of his order under section 112 of the Code.
(15) It cannto be said that in the present case there was substantial compliance with the requirements of recording reasons in writing for taking action under sub-section (3) of section 117 of the Code. There is nto the slightest indication that the learned Magistrate at all applied his mind to the question of emergency. He acted in a most mechanical manner, which is evident from the fact that even in the order under section 112 of the Code, the substance of the information received was nto set forth. The order passed under section 117 did nto contain a word to show what wrongful acts were alleged to have been committed by the petitioner from which the breach of the peace was apprehended. The second paragraph of the order was intended to be based on the details of the alleged wrongful acts of the petitioner for forming an opinion that immediate measures were necessary for prevention of the breach of the peace. As already stated no particulars, whatsoever, were given in the earlier part of the order and, thereforee, it cannto be said that the Magistrate applied his mind to the facts of the case or had formed an opinion that there was any emergency which necessitated immediate measures to be taken for prevention of the breach of the peace.
(16) The fact that even after ordering that the petitioner should be released on his furnishing a personal bond and one surety of Rs. 5,000 no change was made in the formal order under subsection (3) of section 117 of the Code, which required furnishing of two sureties, in an amount of Rs. 5,000.00 each, leaves no doubt that the learned Magistrate dealt with the case nto only in complete disregard of the requirements of Jaw but in an arbitrary and mechanical manner. That inference further finds support from the way in which the surety bonds offered by the petitioner were rejected. It seems that the learned Magistrate was proceeding with the pre-conceived idea of keeping the petitioner in detention, irrespective of the facts and merits of the case.
(17) The order of the learned Magistrate under sub-section (3) of section 117 of the Code cannto in any way be justified, and, it appears to me, was made carelessly and without application of mind to the facts of the case. It has, thereforee, to be regarded as illegal and is set aside. The petitioner should be forthwith released from detention.
(18) The powers conferred on Magistrates in respect of prevention of offences, under part Iv of the Code, are of judicial character and it is necessary to exercise them in a judicious manner and in conformity with the requirements of law. They cannto play with the liberty of people on the pretext of taking preventive action.
(19) Of course the inquiry under sub-section (1) of section 117 of the Code will continue. If pending the conclusion of the inquiry it is considered that any immediate measures are necessary for prevention of the breach of the peace then an order may be made under sub-section (3) of section 117 of the Code but strictly in accordance with law and nto in the arbitrary and illegal manner in which such an order was passed earlier.
(20) The record of the case should be returned immediately so that further proceedings are taken. The petitioner, through his counsel, is being directed to appear, before the District Magistrate, Delhi, on February 12, 1968, so that the case may be made over by him to a Magistrate toher than Shri Omesh Sehgal.