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Roshan Singh Vs. Ramu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Reference No. 108 of 1970
Judge
Reported inAIR1971Raj113; 1971CriLJ785
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 107, 112, 117(1) and 117(3)
AppellantRoshan Singh
RespondentRamu and ors.
DispositionPetition allowed
Cases Referred and Jangir Singh v. State
Excerpt:
.....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. but before such an exceptional measure is taken, the magistrate must first be satisfied that breach of the peace was likely to be committed and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of 'such person......but before such an exceptional measure is taken, the magistrate must first be satisfied that breach of the peace was likely to be committed and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of 'such person. he must record an order in writing showing his satisfaction for the step taken under the proviso. thereafter on the appearance of the person or persons, inquiry in accordance with the provisions of section 117, criminal p. c., can be proceeded with. 5. as a result of the above discussion, it is plain that the order of sub-divisional magistrate, parbatsar, dated june 16, 1969, calling upon party no. 2 to execute interim bonds, without first complying with the provisions of sections 112 and 117 (1), criminal p. c., is illegal. i, therefore,.....
Judgment:
ORDER

L.S. Mehta, J.

1. It appears that party No. 1 Ramu submitted an application to the Court of the Sub-Divisional Magistrate, Parbatsar, under Sections 107/117, Criminal Procedure Code, against Roshan Singh and others, party No. 2. The applicant averred that party No. 2 was interfering with his right of possession over his land (Khasra No. 147/1), situate in village Lichana and that there was likelihood of breach of the peace or disturbance in the public tranquillity. On receipt of the above-application the Sub-Divisional Magistrate, Parbatsar, felt that there was sufficient ground for taking proceedings under Section 107, Criminal P. C., and required party No. 2 to show cause why they should not be ordered to execute bonds with sureties for keeping peace for a period of one year in a sum of Rupees 1000/-, each.

At the same time the Magistrate ordered that pending the completion of the inquiry under Sub-section (1) of Section 117, it was necessary to take immediate measures for the prevention of breach of the peace or disturbance of the public tranquillity and directed party No. 2 to execute ad interim bonds with sureties in a sum of Rs. 1000/-, each, for keeping the peace until the conclusion of the inquiry.

2. Party No. 2 felt aggrieved against the order passed under Sec. 117 (3), Criminal P. C., and approached the learned Sessions Judge, Merta, through a revision-petition, urging that the Court of the Sub-Divisional Magistrate, Parbatsar, should not have proceeded under Sec. 117 (3), Criminal P. C., without first complying with the provisions of Section 112, read with Section 113, Criminal P. C. The learned Sessions Judge agreed with that submission and has submitted this reference for the aforesaid purpose.

3. Sec. 112, Criminal P. C., readsas follows :--

'When a Magistrate acting under Section 107, Section 108, Section 109, or Section 110, deems it necessary to require any person to show cause under such section, he 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.'

Section 117 (3), Criminal P. C., is in the terms following :--

'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 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, and may detain him in custody until such bond is executed, or in default of execution, until the inquiry is concluded.'

From the above provisions, it is mani-fest that no person can be asked to execute any interim bond under Sub-section (3), of Section 117, Criminal P. C., without first complying with the requirements of Sections 112 and 117 (1), Criminal P. C. In a proceeding under Section 107, Criminal Procedure Code, procedure to be adopted is laid down in Sections 112 to 118. Whenever proceedings under Section 107 are contemplated against any person, proceedings are to be initiated by first issuing a notice under Section 112, Criminal P. C., and serving it on that person in accordance with the provisions of Section 113 or Section 114, Criminal P. C. Sub-section (3) of Section 117, would come into play only on the commencement of the inquiry, i. e., after complying with the provisions of Sub-section (1). No interim order can be passed under Section 117 (3) along with an order under Sec. 112, Criminal Procedure Code.

4. An order under Sub-section (3) of Section 117 is not a mere matter of routine to be appended to an order under Section 112, Criminal P. C. A composite order drawing up proceedings under Section 107 and calling upon party concerned to execute a bond with or without surety is not in consonance with law. In other words, an order under Section 112 must precede any step taken under Section 117. Where the Magistrate gives an order under Section 112 and at the same time below that order he simultaneouslypasses an order under Section 117 (3), it cannot be said that the latter order was passed after passing an order under Section 112, Criminal P. C. An order under Section 117 (3) can be made only on the commencement of inquiry and such an inquiry would begin when the person sought to be proceeded against puts in appearance before the Court to answer the charge against him. An order passed under Section 117 (3) without reading or explaining the order under Section 112 or Section 113 to the party concerned, as given in Sub-section (1) of Section 117, Criminal P, C., would be pre-mature; (see Rame Gowda v. State of Mysore, AIR 1960 Mys 259, and Jangir Singh v. State, AIR 1960 Punj 225). If the person concerned is not present in the Court at the time when, order under Section 112 is passed, then the Magistrate can proceed under Sections 114 and 115 and summons or warrant should be issued and the same should be accompanied with the order passed under Section 112. A Magistrate may, under the proviso to Section 114, Criminal P. C., order the immediate arrest of the person concerned against whom an order under Section 112, is made. But before such an exceptional measure is taken, the Magistrate must first be satisfied that breach of the peace was likely to be committed and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of 'such person. He must record an order in writing showing his satisfaction for the step taken under the proviso. Thereafter on the appearance of the person or persons, inquiry in accordance with the provisions of Section 117, Criminal P. C., can be proceeded with.

5. As a result of the above discussion, it is plain that the order of Sub-Divisional Magistrate, Parbatsar, dated June 16, 1969, calling upon party No. 2 to execute interim bonds, without first complying with the provisions of Sections 112 and 117 (1), Criminal P. C., is illegal. I, therefore, accept the reference submitted by the Sessions Judge, Merta, and quash the impugned order.


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