Skip to content


Chandrasekharan and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1973CriLJ538
AppellantChandrasekharan and ors.
RespondentState of Kerala
Cases ReferredNafar Chandra Pal v. Emperor
Excerpt:
- - the executive first class magistrate on the information available was satisfied that the activities of the petitioners were likely to cause breach of the peace and, therefore, initiated proceedings under section 107 of the code. 1,000/- with two sureties in the like sum to keep peace for a period of one year. at least, he has to be prima facie satisfied by some inquiry that an interim bond has to be taken from persons against whom proceedings were initiated......112 and the same was served on them. the magistrate also directed the petitioners to execute an interim bond for rs. 1,000/- with two sureties in the like sum to keep peace for a period of one year. it is this direction by the magistrate to execute an interim bond under section 117(3) of the code that is the subject-matter in this revision.3. the code lays down an elaborate procedure to be followed in proceedings under section 107. the jurisdiction of the magistrate to proceed under section 107, to issue an order under section 112, and for directing persons to execute interim bonds under section 117 have been elaborately considered by the supreme court in the decision reported in madhu limaye v. s.d.m. monghyr : 1971crilj1720 . their lordships observe that the provisions contained in.....
Judgment:
ORDER

V. Khalid, J.

1. Proceedings were initiated by the Sub-Inspector of Police, Town Station, Palghat, against 54 persons, who are the petitioners here, under Section 107 of the Code of Criminal Procedure, hereinafter referred to as the Code. A preliminary order under Section 112 of the Code was passed and served on them. The substance of the charge against the petitioners was that they, who are residing within the local limits of the Executive First Class Magistrate. Palghat, were indulging in unlawful acts and were engaged in other illegal acts leading to imminent breach of the peace. The petitioners are said to be active members of the Mazdur Sangh and are alleged to be a violent type of people and that their illegal activities resulted in communal clashes and riots in the Palghat town. It is said that satyagraha was going on in front of the shop of one Subramania Moothan and Krishna Moothan, that on 8.6.1972 the activities of the petitioners became violent, that they manhandled one Balasubramonian, a worker of Krishna Moothan, that they led a jatha and pelted stones at the Youth Congress office and destroyed window glasses, photos etc. It is further alleged that some of the petitioners were involved in criminal cases. The Executive First Class Magistrate on the information available was satisfied that the activities of the petitioners were likely to cause breach of the peace and, therefore, initiated proceedings under Section 107 of the Code.

2. The police arrested the petitioners and took them into custody on 9.6.1972 and it is averred by the petitioners that they were kept in custody till 10.6.1972 on which day they were produced before the Magistrate who passed an order under Section 112 and the same was served on them. The Magistrate also directed the petitioners to execute an interim bond for Rs. 1,000/- with two sureties in the like sum to keep peace for a period of one year. It is this direction by the Magistrate to execute an interim bond under Section 117(3) of the Code that is the subject-matter in this revision.

3. The Code lays down an elaborate procedure to be followed in proceedings under Section 107. The jurisdiction of the Magistrate to proceed under Section 107, to issue an order under Section 112, and for directing persons to execute interim bonds under Section 117 have been elaborately considered by the Supreme Court in the decision reported in Madhu Limaye v. S.D.M. Monghyr : 1971CriLJ1720 . Their Lordships observe that the provisions contained in Sections 107 - 110 and 112 - 119 are in aid of orderly society and seek to nip in the bud conduct subversive of the peace and public tranquillity and for this purpose the Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. From Para 40 onwards their Lordships discuss the procedure to be adopted before invoking Section 117 of the Code with which we are concerned here. There was wide conflict in judicial opinion regarding the manner in which Section 117(3) was to be invoked. Their Lordships observe:

A question was raised before us whether the Magistrate can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. Other learned Judges are of the opinion that Sub-sections (1) and (2) envisage that the Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording his reasons in writing can the interim bond be asked for....

The conflict of opinion between various High Courts regarding the exercise of jurisdiction by Magistrate under Section 117(3) was thus given a quietus by the Supreme Court. Their Lordships further observe:

Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate.

Referring to a Calcutta case reported in Nafar Chandra Pal v. Emperor AIR 1924 Cal 114 : (1924) 25 CriLJ 189 where the Magistrate adjourned the case from day to day and yet asked for an interim bond. Their Lordships observed:

This makes the proceedings entirely one sided. It cannot be described as an enquiry within an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We therefore approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond on placing the person in custody in default.

In para 43 of the judgment the law is laid down in unmistakable terms thus:

The section even as it is drafted today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore it is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed.

It is, therefore, clear that proceedings for an interim bond under Section 117(3) of the Code is not permissible without some enquiry by the Magistrate. At least, he has to be prima facie satisfied by some inquiry that an interim bond has to be taken from persons against whom proceedings were initiated. In view of this authoritative pronouncement, I hold that the direction by the Executive First Class Magistrate in this case requiring the petitioner to execute an interim bond is without jurisdiction. This direction is therefore set aside.

In the result, the Criminal Revision Petition is allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //