Dibakar Bhoi Vs. State of Orissa and Three ors. - Court Judgment

Excerpt:
.....chandramani nayak (supra), it is clearly stated that the magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under section 107, cr. clearly states that in the show cause notice, the magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject......only on the police report he initiated the proceeding and issued show cause notice.2. mr. bhoi, learned counsel for the petitioner relying on the case of chandramani nayak v. state : 1991(ii)olr111 reiterates the stand of the petitioner.3. mr. pradhan, learned counsel for opposite parties, on the other hand, supports the impugned order and notice annexure-1 and 2.4. the order of the executive magistrate dated 14.08.2007 initiating the proceeding under section 107, cr.p.c. reveal that on perusal of the p.r. submitted by the i.i.c., rasgobindapur p.s., he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not.....

Judgment:
ORDER

A.K. Parichha, J.

1. Heard learned Counsel for the parties. The petitioner, who has been arrayed as a delinquent in CMC No. 467 of 2007 in the court of learned Executive Magistrate, Criminal Court, Baripada, has filed this petition challenging the order initiating the proceeding under Section 107, Cr.P.C. against her basically on the plea that the Executive Magistrate before initiating the proceeding and issuing show cause notice did not undertake any inquiry for his satisfaction and that relying only on the police report he initiated the proceeding and issued show cause notice.

2. Mr. Bhoi, learned Counsel for the petitioner relying on the case of Chandramani Nayak v. State : 1991(II)OLR111 reiterates the stand of the petitioner.

3. Mr. Pradhan, learned Counsel for opposite parties, on the other hand, supports the impugned order and notice Annexure-1 and 2.

4. The order of the Executive Magistrate dated 14.08.2007 initiating the proceeding under Section 107, Cr.P.C. reveal that on perusal of the P.R. submitted by the I.I.C., Rasgobindapur P.S., he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. 5,000/- for keeping peace of a period of one year. In the case of Madhu Limaye v. Ved Murty : 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr.P.C. and that he cannot initiate such a proceeding simply basing on a police report. Section 111 of the Cr.P.C. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject. The impugned order and the notice in the present case do not fulfil this demand. That being so, the impugned order and notice have to be quashed.

5. The impugned order and notice as at Annexure-1 and 2 are accordingly quashed, but the Magistrate or the police authority are not debarred to undertake proceeding, according to the mandates of law, if contingency still exists.