S.S. Parkar, J.
1. This petition is one more example of abuse of powers by the authorities. In this case it is the Asst. Commissioner of Police, who was appointed as Executive Magistrate by the Government of Maharashtra, who has by his absolutely illegal and unwarranted order put the citizen, who is a Science Graduate and Diploma Holder in Civil Engineering, behind the bars. The petition is filed in the following circumstances.
2. In Nasik city on Gangapur Road there is a land bearing survey No. 684 which the owner wanted to develop and, therefore, he had given power of attorney to one Chandrakant Trimbak Rajebahaddar and the said power of attorney holder seems to have assigned the work of development to the petitioner. In the said property there were slums and, therefore, there was dispute between the occupiers of the land and the developer. In the month of January 1994 the occupants of the land had filed complaints which are registered as N.Cs. under Sections 143, 147 and 506 of IPC and one C.R. under Section 511 of IPC with Sarkarwada Police Station. The Respondent No. 2 had started chapter proceedings bearing C.C.No. 43 of 1994 against the petitioner and others under Section 107 of Cr.P.C. In that chapter proceedings initially sow cause notice was issued under Section 111 of Cr.P.C. on 27/1/1994. The petitioner had executed a bond in the sum of Rs. 3000/- in the said chapter proceedings. It seems that in the month of April 994 the occupiers in the land again lodged a complaint against the petitioner and others. Pursuant to the said complaint the respondent No. 2 issued a show cause notice dated 21/4/1994 under Section 107 of Cr.P.C. in which it was mentioned that on the basis of the earlier show cause notice issued in the month of January 1994 the petitioner had executed a bond in the sum of Rs. 3000/- on 27/1/1994. The said bond was cancelled on the ground that the petitioner was in breach of the said bond and, therefore, he was asked to furnish fresh bond with two sureties, one of such sureties should be a Government servant who should not be Class IV employee and another surety should be a respectable businessman. It is alleged that without giving any opportunity to the petitioner to arrange for those sureties the petitioner was taken in custody. He was detained in custody for a period of five days. He was released from jail on 25/4/1994. Thereafter the petitioner had challenged the chapter proceedings in the Sessions Court by filing Criminal Revision Application No. 224 of 1994 and the Sessions Court by order dated 16th June 1995 quashed the said chapter proceedings and set aside the interim security bonds which were taken and forfeited by the respondent No. 2.
3. In the mean time the petitioner filed a private complaint in the Court of JMFC, Nasik bearing Criminal Case No. 322 of 1994 for offence under Section 342 of IPC for his wrongful and illegal confinement by the respondent No. 2. The said complaint was dismissed under Section 203 of Cr.P.C. by the learned JMFC, Nasik on the ground of want of sanction under Section 197 of Cr.P.C. But the said order was challenged by the petitioner in the Sessions Court by filing Criminal Revision Application No. 223 of 1994. The Sessions Court, though was of the view that on the face of it the petitioner appears to have been put under wrongful confinement, dismissed the revision application on the ground that the respondent No. 2 being a public servant or a Magistrate, the sanction was required under Section 197 of Cr.P.C. in the absence of which the criminal complaint could not be entertained by the trial Court.
4. In the petition allegations have been made against the respondent No. 2 that when the second show cause notice was issued on 21/4/1994, he had abused the petitioner in filthy language and had also demanded a sum of Rs. 50,000/- and if the said amount was not paid, he would be put behind the bar.
5. So far as the allegations in the complaint are concerned about the threats held out by the respondent No. 2 and the demand of Rs. 50,000/-, the veracity of the same cannot be decided in this petition. Those allegations have been denied by the respondent No. 2 in the affidavit dated 8/8/1996 filed by him in this Court. Even the prayer for direction to prosecute the respondent No. 2 cannot be granted in this petition. If the petitioner wants to prosecute the respondent No. 2 for the alleged offences, he has to obtain sanction under Section 197 of Cr.P.C. in the absence of which the courts below ere not wrong in dismissing his complaint. But in the course of the arguments and from the pleadings and the reply affidavit filed by the respondent No. 2 what we find is that the respondent No. 2 had passed the order of interim bond against the petitioner in violation of the provisions of law. The chapter proceedings were initiated under Section 107 of Cr.P.C. which provides for giving of security for keeping peace. If such order is to be passed the Executive Magistrate is obliged to issue show cause notice under Section 111 of Cr.P.C. which was issued to the petitioner on 21/4/1994, a copy of whereof is annexed as Exhibit 'B' to this petition.
6. It cannot be disputed that the law provides for issuance of show cause notice with a view to afford the person an opportunity to show cause by filing reply and give him hearing in the matter. In the show cause notice dated 21/4/1994 the respondent No. 2 has cancelled the earlier interim bond executed by the petitioner on the ground that he was in breach of the conditions of the said bond as NC complaint was lodged against him by Sarkarwada Police Station for offences under Sections 323 and 504 of IPC and in the next breathe in the said show cause notice the petitioner was called upon to furnish fresh bonds with two sureties, one of a Government servant not belonging to Class IV and another of a respectable businessman in the sum of Rs. 3000/- each. That could not have been done by the petitioner then and there at the police station unless some time had been given to him to produce the sureties. In stead of giving time, the petitioner was taken into custody until he was released after the sureties were arranged for him on 25/1/1994. It will be pertinent to mention here that the interim bonds cannot be demands or asked to be furnished by a person unless and until the person is a habitual offender or is so desperate and dangerous as to render his being at large without security was hazardous to the community. No such case is made out in the show cause notice under which the petitioner was asked to execute interim bond then and there nor any justification shown in reply affidavit.
7. It is not disputed that the petitioner is a Science graduate and holding Diploma in Civil Engineering and was carrying on business as a developer in the town and no other antecedents of the petitioners were brought on record to show that he was a dangerous person or habitual offender and, therefore, there was any necessity to obtain interim bond from him. Such orders are brought to the notice of this Court time and again. The persons who are appointed as Executive Magistrate are acting callously and in utter disregard of the right of a citizen for personal liberty guaranteed by Article 21 of the Constitution. The order passed by the Executive Magistrate was ultimately quashed by the Sessions Court as stated earlier in Criminal Revision Application No. 224 of 1994 on 16th June 1995 holding that there was private dispute between the complainants who were occupiers of the land and the petitioner and the person who was holding power of attorney and the very initiation of the proceedings under Section 107 of Cr.P.C. was illegal as held in the case of Jayant D. Shah v. State Govt. reported in 1986 (1) Crimes 405.
8. In this respect reference can also be made to the judgments reported in : 1971CriLJ1715 and 1994 Bom Criminal Cases 580.
9. From the aforesaid narration of facts it appears that the respondent No. 2 had acted very high handedly and in utter disregard to the rights of the citizens as well as the provisions of law and thus deprived the citizen of his personal liberty without following the procedure establishes by law.
10. So far as the respondent No. 2 is concerned, he is claiming protection under the provisions of the Judges (Protection) Act, 1985. The said Act is applicable to the Judges which includes a person who is empowered by law to give a judgment in any legal proceedings. Under Section 3(1) of the said Act it is provided that no Court can entertain a civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of acting or purporting to act int he discharge of his official or judicial duty or function. However, Sub-section (2) of Section 3 empowers the respective Government or the Supreme Court or the High Court or any other authority to take such action whether by way of civil, criminal, or departmental proceedings or otherwise against any person who is or was a Judge. As per the finding of the Sessions Court the petitioner was wrongfully and illegally confined for five days in Chapter Case No. 43 of 1994 which amounted to an offence under Section 342 of IPC. The respondent No. 2 was party to the said proceedings in the Sessions Court and was represented by his own Advocate. The said observations were never challenged by him before the higher forum. We are also of the view that the Respondent No. 2 was acted illegally without following the procedure under the provisions of Cr.P.C. before confining the petitioner to jail. In the circumstances, we direct the State Government to take appropriate action against the Respondent No. 2 for his wrongful and illegal act.
11. In the circumstances, the petitioner may pursue his remedy for claiming damage or compensation for deprivation of his personal liberty as may be open to him under law. He may also, if he chooses, apply to the appropriate authority for obtaining sanction to prosecute the respondent No. 2.
12. In the result, we direct the State Government to take appropriate action against Respondent No. 2 for illegally detaining the Petitioner in custody without following the procedure established by law. It is open for the Petitioner to apply for sanction of prosecution of the Respondent No. 2 to appropriate authority and also to claim damages or compensation for his illegal detention. Rule is disposed of accordingly.