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Batuk Jamnadas Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR810
AppellantBatuk Jamnadas
RespondentThe State of Gujarat
Cases ReferredJagdish Prasad v. The State
Excerpt:
.....the magistrate finds that immediate action is necessary in order to prevent a breach of the peace the magistrate can at any point of time issue a warrant for the arrest of such person and thus effectively prevent a breach of the peace. the scheme underlying the various sections occurring in this part of chapter viii therefore appears clearly to show that an order for execution of an interim bond under section 117(3) can be made by the magistrate only after the order under section 112 has been read over or explained to the person against whom such order is made if he is present in court at the time when such order is made or otherwise when such person appears or is brought before the magistrate in compliance with or in execution of the summons or warrant. the inquiry referred to in..........terms:(1) when an order under section 112 has been read or explained under section 113 to a person present in court or when any person appears or is brought before a magistrate in compliance with or in execution of a summons or warrant issued under section 114 the magistrate shall proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary.(2) such inquiry shall be made as nearly as may be practicable in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases.(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 a breach of the peace or disturbance of the.....
Judgment:

P.N. Bhagwati, J.

1. This appeal is directed against an order passed by the Sub-Divisional Magistrate Ahmedabad forfeiting the amount of a bond executed by the appellant on 19th June 1961 for keeping the peace pending the completion of an inquiry before the learned Sub-Divisional Magistrate. A complaint was lodged before the learned Sub-Divisional Magistrate to the effect that the appellant was likely to commit a breach of the peace and that proceedings should therefore be adopted against him under Section 107 Criminal Procedure Code. On the complaint the learned Sub-Divisional Magistrate made an order under Section 112 Criminal Procedure Code. The learned Sub-Divisional Magistrate also on the application of the police made another order on the same day. That order consisted of two parts. By the first part the learned Sub-Divisional Magistrate directed the appellant to execute an interim bond for Rs. 500/- with one surety of like amount for keeping the peace pending the completion of the proceedings against the appellant. This part of the order was made under Section 117(3) Criminal Procedure Code. By the second part of the order the learned Sub-Divisional Magistrate issued a bailable warrant for Rs. 500/- against the appellant under Section 114 Criminal Procedure Code since he was of the opinion that breach of the peace could not be prevented otherwise than by the immediate arrest of the appellant. At the date when these two orders namely the one under 112 and and the other under Sections 114 and 117(3) were made the appellant was as the record shows away from Ahmedabad. The appellant thereafter returned to Ahmedabad and executed an interim bond for Rs. 500/- with one surety of like amount to keep the peace during the pendency of the inquiry before the learned Sub-Divisional Magistrate. This interim bond was executed by the appellant on 19th June 1961 The appellant also made an application to the learned Sub-Divisional Magistrate in regard to the bailable warrant for Rs. 500/- and on the application of the appellant the amount of the bail was reduced from Rs. 500/- to Rs. 300/-by the learned Sub-Divisional Magistrate. It appears that the appellant furnished bail and was therefore released. The appellant according to the State committed two offences one against one Amratlal and the other against one Krishnakant on 20th June 1961 and 21st June 1961 and non-cognizable complaints were lodged with the police against the appellant by Amratlal and Krishnakant. The police thereupon made an application to the learned Sub-Divisional Magistrate for forfeiting the amount of the interim bond executed by the appellant. The application was resisted by the appellant. The learned Sub-Divisional Magistrate however after taking evidence came to the conclusion that the appellant had committed a breach of the peace in violation of the terms of the interim bond and had therefore incurred forfeiture of the amount of the bond. The learned Sub-Divisional Magistrate accordingly made an order forfeiting the amount of the interim bond. The appellant thereupon preferred an appeal in the Court of District Magistrate Ahmedabad. On the coming into force of the new set up in Ahmedabad the appeal was directed by a Division Bench to be transferred to this Court. Hence the appeal before me.

2. Mr. Sethna learned advocate appearing on behalf of the appellant raised in the main two contentions in support of the appeal. The first contention was that the order made by the learned Sub-Divisional Magistrate under Section 117(3) pursuant to which the interim bond was executed by the appellant was not a valid order and that the learned Sub-Divisional Magistrate was therefore not entitled to forfeit the amount of the interim bond. The ground on which this contention was based was that no order Section 117(3) could be made by the learned Sub-Divisional Magistrate unless the inquiry mentioned in Section 117(1) had commenced and the inquiry under Section 117(1) could not be said to have commenced until the order made under Section 112 was read or explained under Section 113 to the appellant if he was present in Court at the date when the order under Section 112 was made or if the appellant was not so present then until the appellant appeared or was brought before the learned Sub- Divisional Magistrate in compliance with or in execution of a summons or warrant issued under Section 114. Mr. Sethna contended that in the present case the order under Section 117(3) was made by the learned Sub- Divisional Magistrate before the inquiry under Section 117(1) had commenced because the order under Section 117(3) was made at the same time as the order under Section 112 long before the appellant was brought before the learned Sub-Divisional Magistrate in execution of the warrant issued against him under Section 114 by the learned Sub-Divisional Magistrate. If this contention of Mr. Sethna is right it is obvious that the order made by the learned Sub-Divisional Magistrate under Section 117(3) was not a valid order and if that be so it is equally clear that the amount of the interim bond executed by the appellant in obedience to such an invalid order could not be forfeited by the learned Sub-Divisional Magistrate.

The second contention of Mr. Sethna was based on the merits of the order made by the learned Sub-Divisional Magistrate forfeiting the amount of the interim bond. Mr. Sethna contended that the evidence on record did not establish that the appellant had committed a breach of the peace and thereby incurred forfeiture of the interim bond. This contention would have of course required consideration of the evidence led before the learned Sub-Divisional Magistrate but in view of the fact that I am accepting the first contention of Mr. Sethna it is not necessary for me to decide the validity of this contention and I therefore do not propose to say anything about it.

The first contention of Mr. Sethna which I have just mentioned turns upon the true interpretation of Section 117(3). The contention raises the question: what is the stage in the proceedings initiated by lodging information with the Magistrate under Section 107 or for the matter of that Section 108 109 or 110 at which an order under Section 117(3) can be made by the Magistrate? In order to answer this question I will first consider the language of the section itself for it is elementary that there can be no better guide to the intention of the Legislature than the language used by the Legislature itself. Of course in this task of construction 1 must not ignore the scheme of the enactment and the context furnished by the other sections for it is equally well-settled that every statute must be construed ex visceribus actus i.e. within the four corners of the Act. Every clause of a statute must be construed with reference to the context and other clauses in the Act so as far as possible to make a consistent enactment of the whole statute and no part of the statute must be construed in isolation. Bearing in mind this salutary rule of construction I will now proceed to examine the question of construction raised before me.

3. The fasciculus of sections commencing from Section 107 and ending with Section 119 occurs in Chapter VIII Part B which is headed Security for keeping the peace in other cases and Security for Good Behaviour. Section 107 provides that whenever a Magistrate of the class described in that section is informed that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility the Magistrate if in his opinion there is sufficient ground for proceeding may require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. Section 108 109 and 110 provide for other cases where preventive action such as the one contemplated under Section 107 may be necessary. Section 112 prescribes the manner in which the Magistrate must proceed if there is in his opinion sufficient ground for proceeding under Section 107 108 109 and 110. When the Magistrate deems it necessary under any of the aforesaid sections to require any person to show cause under such section Section 112 declares that the Magistrate shall make an order in writing setting forth the substance of the information received the amount of the bond to be executed the term for which it is to be in force and the number character and class of sureties if any- required. If the person in respect of whom such order is made is present in Court the order is required under Section 113 to be read over to him or if he so desires the substance thereof must be explained to him. If however such person is not present in Court then Section 114 requires that in such a case the Magistrate shall issue a summons requiring him to appear or when such Person is in custody a warrant directing the officer in whose custody he is to bring him before the Court. The proviso to Section 114 is rather important for it confers power on the Magistrate to issue a warrant for the arrest of such person if it appears to the Magistrate that there is reason to fear the commission of a breach of the peace and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person. If therefore such person is not present in Court at the time when the order under Section 112 is made and the Magistrate fears the commission of the breach of the peace during the period between the date of the making of the order under Section 112 and the date when the person against whom the order is made appears before the Magistrate in compliance with the summons issued against him the Magistrate can act swiftly in order to prevent a breach of the peace and issue a warrant for the arrest of such person. Section 115 provides that every summons or warrant issued under Section 114 shall be accompanied by a copy of the order made under Section 112 and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the same. I need not refer to Section 116 for that is not material for the purpose of the present discussion. Then comes Section 117 which I think it desirable to reproduce in extenso since the entire controversy between the parties rests on the true interpretation to be put upon the provisions enacted in that section. Section 117 is in the following terms:

(1) When an order under Section 112 has been read or explained under Section 113 to a person present in Court or when any person appears or is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under Section 114 the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary.

(2) Such inquiry shall be made as nearly as may be practicable in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases.

(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 a breach of the peace or disturbance of the public tranquility 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 and may detain him in custody until such bond is executed or in default of execution until the inquiry is concluded:

Provided that:

(a) no person against whom proceedings are not being taken under Section 108 Section 109 or Section 110 shall be directed to execute a bond for maintaining good behaviour and

(b) the conditions of such bond whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability shall not be more onerous than those specified in the order under Section 112.

(4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.

(5) When two or more persons have been associated together in the matter under inquiry they may be dealt with in the same or separate inquiries as the Magistrate shall think just.

Sections 118 and 119 provide for the final orders to be made on the inquiry under Section 117(1).

4. Now it is clear on a reading of the aforesaid section that the first step which the magistrate is required to take on receiving information under Sections 107 108 109 for 110 is to make an order under Section 112 if in his opinion there is sufficient ground for proceeding under that sect- ion. If the person in respect of whom the order is made under Section 112 is present in Court then of course the order can be immediately read over to such person and if he so desires the substance thereof can be explained to him and the Magistrate can on that being done proceed to inquire into the truth of the information upon which action has been taken. If the Magistrate finds that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety the Magistrate can under Section 117(3) direct for reasons to be recorded in writing the person in respect of whom the order under Section 112 is made to execute an interim bond for keeping the peace or maintaining good behaviour until the completion of the inquiry. If however the person against whom the order under Section 112 is made is not present in Court the Magistrate can issue a summons requiring him to appear or when such person is in custody a warrant directing the officer in whose custody he is to bring him before the Court. When the person against whom the order under Section 112 is made appears or is brought before the Magistrate in compliance with or execution of the summons or warrant the Magistrate can proceed to inquire into the truth of the information upon which action has been taken and again if the Magistrate finds that at that stage or at any subsequent stage immediate action in the shape of execution of an interim bond is necessary the Magistrate can act under Section 117(3). If before the person against whom the order is made under Section 112 appears before the Magistrate in compliance with the summons the Magistrate finds that immediate action is necessary in order to prevent a breach of the peace the Magistrate can at any point of time issue a warrant for the arrest of such person and thus effectively prevent a breach of the peace. The scheme underlying the various sections occurring in this part of Chapter VIII therefore appears clearly to show that an order for execution of an interim bond under Section 117(3) can be made by the Magistrate only after the order under Section 112 has been read over or explained to the person against whom such order is made if he is present in Court at the time when such order is made or otherwise when such person appears or is brought before the Magistrate in compliance with or in execution of the summons or warrant. It is only then that the Magistrate can proceed to inquire into the truth of the information upon which action has been taken. As the very language of Section 117(1) shows the inquiry into the truth of the information upon which action has been taken can commence only when the order under Section 112 is read over or explained to the person against whom such order is made if he is present in Court at the time of the making of such order or if he is not so present then when he appears or is brought before the Magistrate in compliance with or in execution of the summons or warrant. The inquiry referred to in Section 117(1) is the inquiry into the truth of the information upon which action has been taken and that inquiry clearly commences after the order made under Section 112 has been read over or explained to the person against whom it is made if he is present in Court at the time of the making of the order or if he is not so present then when he appears or is brought before the Magistrate in compliance with or in execution of the summons or warrant. That is the starting point of the inquiry and since the Magistrate can act under Section 117(3) only pending the completion of the inquiry it is clear that he cannot so act prior to the commencement of the inquiry that is prior to the point of time when the order under Section 112 is read over or explained to the person in respect of whom it is made if he is present in Court or if he is not so present then when he appears or is brought before the Magistrate in compliance with or in execution of the summons or warrant. The power conferred on the Magistrate to take action under Section 117(3) is confined to the period during the pendency of the completion of the inquiry under Section 117(1) and that period must obviously commence from the starting point of the inquiry and end with the completion of the inquiry. If any action is found necessary to be taken before the starting point of the inquiry the Magistrate can take such action under the proviso to Section 114. But the action under Section 117(3) can be taken only after the inquiry has commenced and the inquiry commences as I have already pointed out above when the order under Section 112 is read over or explained to the person affected if he is present in Court or if he is not so present then when he appears or is brought before the Magistrate in compliance with or in execution of the summons or warrant. No order under Section 117(3) can therefore be made by the Magistrate before the order under Section 112 is read over or explained to the person against whom it is made if he is present in Court at the time of the making of the order or if he is not so present then before he appears or is brought before the Magistrate in compliance with or in execution of the summons or warrant. There is a concensus of judicial opinion in support of this view which I am inclined to take as regards the construction of Section 117(3). To quote only a few of the judicial decisions which have taken this view I may mention (1) Jallaludin Kunja v. State A.I.R. 1952 Tra. Cochin 262(2) Jaswantsingh v. Ranchhod A.I.R. 1954 Madhya Bharat 192 (3) In re Venkatasubba Reddy : AIR1955AP96 and (4) Jagdish Prasad v. The State : AIR1957Pat106 .

5. Now in the present case the order under Section 117(3) was made by the learned Sub-Divisional Magistrate at the same time as the order under Section 112. The appellant was away from Ahmedabad at the time when the order under Section 112 was made by the learned Sub-Divisional Magistrate. The learned Sub-Divisional Magistrate actually issued a warrant for the arrest of the appellant under the proviso to Section 114 as he came to the conclusion from the report of the police that there was reason to fear the commission of a breach of the peace and that such breach of the peace could not be prevented otherwise than by the immediate arrest of the appellant. The order under Section 117(3) was therefore obviously made by the learned Sub-Divisional Magistrate long before the appellant was brought before the Sub-Divisional Magistrate in execution of the warrant. The inquiry mentioned in Section 117(1) had thus clearly not commenced at the date when the order under Section 117(3) was made by the learned Sub-Divisional Magistrate. The order under Section 117(3) was therefore not a valid order and could not form the foundation for the forfeiture of the amount of the interim bond executed by the appellant pursuant to such order.

6. Mr. H.M. Chokshi learned Government Pleader appearing on behalf of the state contended that, even if the learned Sub-Divisional Magistrate made the order under Section 117(3) before the commencement of the inquiry under Section 117(1) that was at the highest an irregularity which was curable under the provisions of Section 537. I am afraid I cannot accept this argument. On the view 1 have taken the learned Sub-Divisional Magistrate had no jurisdiction to make the order under Section 117(3) at any point of time before the inquiry under Section 117(1) commenced and the order in the present case having been made by the learned Sub- Divisional Magistrate before the commencement of the inquiry under Section 117(1) it was clearly without jurisdiction and amounted to an illegality and not all irregularity curable under the provisions of Section 537.

I therefore allow the appeal and set aside the order passed by the learned Sub-Divisional Magistrate forfeiting the amount of the bond. The amount of the bond if recovered will be refunded to the appellant.


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