| SooperKanoon Citation | sooperkanoon.com/692751 |
| Subject | Criminal |
| Court | Delhi High Court |
| Decided On | Nov-01-1990 |
| Case Number | Criminal Miscellaneous (Main) Appeal No. 1878 of 1989 |
| Judge | A.B. Saharya, J. |
| Reported in | 1991(1)Crimes168; 42(1990)DLT601; 1991(20)DRJ50 |
| Acts | Code of Criminal Procedure (CrPC) , 1973 - Sections 107 |
| Appellant | Vimal Kumar Singh and anr. |
| Respondent | State and ors. |
| Advocates: | I.C. Sudhir,; M.S. Siddique and; S.K. Goyal, Advs |
Excerpt:
code of criminal procedure, 1973 - section 107/151 & section 482--a notice issued under section 107/111 of the code is not liable to be quashed merely because it has been issued on a cyclo-styled proforma if it fulfills the basic ingredients of law. - - in these circumstances, it is alleged that the said sub-inspector bad to arrest the two petitioners. that you are likely to do a wrongful act which may result in the breach of peace within the local limit of my jurisdiction and since i am satisfied from police report against you. new delhi do hereby require you to show cause why you should not be ordered to execute a personal bond in the sum of rs, 5.000.00 with one surety in the like amount for keeping peace for a period of one year. 5,000.00 ;the period of one year as the term of the bond ;as well as the requirement of one surety. 5,000.00 with one surety in the like amount for keeping peace 'until the conclusion of the inquiry'.he then accepted the bond and surety furnished by the petitioners and directed the case to come up on 8th of november 1989 for evidence that day the statement of mohd.arun b. sabarya, j.(1) by this petition under section 482 of the code of criminal procedure, 1973 (hereinafter referred to as the code) the petitioners have prayed that proceedings under sections 107 and 151 of the code initiated by the special executive magistrate by a notice dated 22nd of september 1989 with respect to each of them be quashed. (2) the petitioners have challenged the proceeding on the ground that the impugned notices were issued in a mechanical manner, on cyclostyled. forms, and without application of mind. (3) in view of the nature of challenge raised by the petitioners, record of proceedings before the executive magistrate were called for and have been examined. (4) the two petitioners are employees of respondent no. 6. according to them, the proceedings under sections 107 - and 151 of the code have been initiated at the instance of their employer, by way of victimisation, on account of their active participation in an agitation in respect of an industrial dispule. (5) the record shows that the magistrate has initiated proceedings on the basis of a police report dated 22nd of september 1989. according to this report, sub-inspector shankar singh, respondent no. 5, proceeded to the factory establishment of respondent no. 6 to investigate into an information received regarding breach of the peace. there, on noticing one shchtaz, respondent no. 7, the two petitioners got enraged and threatened him with dire consequences for calling the police. they remained aggressive and despite efforts to pacify them it appeared that they were bent upon picking up quarrel with the said shchtaz. in these circumstances, it is alleged that the said sub-inspector bad to arrest the two petitioners. they were produced before the executive magistrate on the 23rd of september 1989. (6) on the basis of the police report, the magistrate issued a notice to each of the petitioner sunder sections 107/111 of the code. since the petitioners did not admit the correctness of contents of the police report and claimed to be tried, the magistrate directed each of them to execute a personal bond with one surety for keeping peace until the conclusion of the inquiry. peeling aggrieved, the petitioners have challenged those proceedings by this petition. (7) section 107 of the code envisages that when an executive magistrate receives information, infer alia, that any person is likely to do any wrongful act that may probably occasion a breach of the peace and is of the opinion that there is sufficient ground for proceeding, he may, in the manner thereafter provided, require such person to show cause why he should not be ordered to execute a bond for keeping the peace. section 111 postulates the manner in which the magistrate must proceed. it requires him to 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. section 112 of the code provides that if a person in respect of whom such an order is made so desires, the substance of the order shall be explained to him. if the concerned person disputes correctness of the information upon which action has been taken. section 116 enjoins that the magistrate shall proceed to enquire into the truth of the information and to take such further evidence as may appear necessary. after the commencement of the inquiry, if the magistrate considers that immediate measures are necessary for prevention of the breach of the peace, be may for reasons to be recorded in writing direct the person to execute a bond with or without sureties for keeping the peace until the conclusion of the inquiry. if upon such inquiry it is proved that it is necessary for keeping the peace the magistrate shall make an order that the person should execute a bond with or without sureties for that purpose. (8) a perusal of these provisions contained in chapter viii of the code shows that the nature of the proceedings there under are of preventive juistice. although an order to execute a bond before an offence is committed has the appearance of an administrative order, it is really judicial in character. the procedure prescribed in the above mentioned proceedings also establishes the judicial nature of the proceedings. (9) the impugned notice has to be examined in the light of these provisions. the notice issued to each of the petitioners is in identical terms. except that the name of each of them has been mentioned in the text. the operative part of the notice in respect of petitioner no. i reads as follows : 'whereas from the report of sho b. pur it appears that you bimal kumar singh s/o shatrughan singh r/o madan pur khadar b. pur along with ram nain singh have threatened one shctaz s/o mustata hussain with dire consequences in front of factory gate (cubic factory) mathura road on 22-9-89. you also intended to pick up quarrel and remained aggressive. you have disturbed the public peace and tranquillity. that you are likely to do a wrongful act which may result in the breach of peace within the local limit of my jurisdiction and since i am satisfied from police report against you. i.s.vasudeva rao. sem south distt. new delhi do hereby require you to show cause why you should not be ordered to execute a personal bond in the sum of rs, 5.000.00 with one surety in the like amount for keeping peace for a period of one year. the record shows that tins is a cyclostyled notice. in the first paragraph. the portion bimal kumar singh onwards has been written out in hand in the blank space left for that purpose in the cyclostyled proforma in the second paragraph, the name of the magistrate and the figure rs. 5.000.00 denoting the sum of the bond have been written in the spaces kept blank for that purpose. in the second paragraph of the proforma, with regard to sureties, two alternatives are indicated which read 'with ane surety/two sureties' ; but, the second option has been scored out. thus, it requires only one surety. (10) a combined reading of section 107 and section 111 of the code requires the magistrate, when he receives actionable information on the basis of which be is of opinion that there is sufficient ground for proceeding, to pass a preliminary order. it should be in writing, setting forth : (i) the substance of the information received ; (ii) the amount of the bond ; (iii) the terms of the bond ; and (iv) the number of sureties, if any. (11) in the present case, although the impugned notice has been issued on a cyclostyled proforma, yet it satisfies each of these requirements. the, first paragraph contains in writing the substance of the information received from the police. this is clear proof of application of mind. the second paragraph specifies the amount of the bond i.e. rs. 5,000.00 ; the period of one year as the term of the bond ; as well as the requirement of one surety. the impugned notice is really a composite document conveying to the concerned person an order in writing for the purposes of section 111 of the code and requiring him to show cause why he should not be ordered to execute a bond under section 107 of the code. (12) this apart, the record shows that the magistrate recorder the statement .of each of the petitioners wherein he answered in the affirmative questions: if he had received the .order passed under section 111 of the code : and whether be understood the said order which was read over and explained to him. further, on ; being asked whether be wanted to show cause, each of them stated that he did not admit the information in respect of him and that he claimed to be tried on this position being taken by the petitioners, the magistrate made an order under sub-section (3) of section 116 of the code requiring each of then to execute personal bond in the sum of rs. 5,000.00 with one surety in the like amount for keeping peace 'until the conclusion of the inquiry'. he then accepted the bond and surety furnished by the petitioners and directed the case to come up on 8th of november 1989 for evidence that day the statement of mohd. shehtaz was recorded and the case was adjourned to 29th of november 1989 for recording further evidence. at that stage, the record of proceedings before the magistrate, on being so required, was sent to this court. (13) in these circumstances, though the impugned notice has been drawn up and issued on a cyclostyled proforma, it cannot be said, for this reason alone, that the magistrate made the preliminary order under section 111 of the code or issued the show cause notice under section 107 of the code in a mechanical manner and without application of mind. (14) ordinarily, on reading this conclusion, i would have remanded the ease to the magistrate for further proceedings. in the present case, however, the maximum period of one year for which the petitioners could be ordered to execute a bond for keeping the peace has lapsed during its pendency in this court, and counsel for the petitioners has asserted that bids clients have done nothing in the meanwhile which could breach the peace. (15) in these peculiar circumstances, further proceedings against the petitioners in pursuance of the impugned notice under sections 107/151 of the code are dropped ; the petitioners are discharged ; and the bond and surety furnished by each of them is hereby cancelled. (16) the petition is, accordingly, disposed of.
Judgment:Arun B. Sabarya, J.
(1) By this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the petitioners have prayed that proceedings under Sections 107 and 151 of the Code initiated by the Special Executive Magistrate by a notice dated 22nd of September 1989 with respect to each of them be quashed.
(2) The petitioners have challenged the proceeding on the ground that the impugned notices were issued in a mechanical manner, on cyclostyled. forms, and without application of mind.
(3) In view of the nature of challenge raised by the petitioners, record of proceedings before the Executive Magistrate were called for and have been examined.
(4) The two petitioners are employees of respondent No. 6. According to them, the proceedings under Sections 107 - and 151 of the Code have been initiated at the instance of their employer, by way of victimisation, on account of their active participation in an agitation in respect of an industrial dispule.
(5) The record shows that the Magistrate has initiated proceedings on the basis of a police report dated 22nd of September 1989. According to this report, Sub-Inspector Shankar Singh, respondent No. 5, proceeded to the factory establishment of respondent No. 6 to investigate into an information received regarding breach of the peace. There, on noticing one Shchtaz, respondent No. 7, the two petitioners got enraged and threatened him with dire consequences for calling the police. They remained aggressive and despite efforts to pacify them it appeared that they were bent upon picking up quarrel with the said Shchtaz. In these circumstances, it is alleged that the said Sub-Inspector bad to arrest the two petitioners. They were produced before the executive Magistrate on the 23rd of September 1989.
(6) On the basis of the police report, the Magistrate issued a notice to each of the petitioner sunder Sections 107/111 of the Code. Since the petitioners did not admit the correctness of contents of the police report and claimed to be tried, the Magistrate directed each of them to execute a personal bond with one surety for keeping peace until the conclusion of the inquiry. Peeling aggrieved, the petitioners have challenged those proceedings by this petition.
(7) Section 107 of the Code envisages that when an Executive Magistrate receives information, infer alia, that any person is likely to do any wrongful act that may probably occasion a breach of the peace and is of the opinion that there is sufficient ground for proceeding, he may, in the manner thereafter provided, require such person to show cause why he should not be ordered to execute a bond for keeping the peace. Section 111 postulates the manner in which the Magistrate must proceed. It requires him to 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. Section 112 of the Code provides that if a person in respect of whom such an order is made so desires, the substance of the order shall be explained to him. If the concerned person disputes correctness of the information upon which action has been taken. Section 116 enjoins that the Magistrate shall proceed to enquire into the truth of the information and to take such further evidence as may appear necessary. After the commencement of the inquiry, if the Magistrate considers that immediate measures are necessary for prevention of the breach of the peace, be may for reasons to be recorded in writing direct the person to execute a bond with or without sureties for keeping the peace until the conclusion of the inquiry. If upon such inquiry it is proved that it is necessary for keeping the peace the Magistrate shall make an order that the person should execute a bond with or without sureties for that purpose.
(8) A perusal of these provisions contained in Chapter Viii of the Code shows that the nature of the proceedings there under are of preventive Juistice. Although an order to execute a bond before an offence is committed has the appearance of an administrative order, it is really judicial in character. The procedure prescribed in the above mentioned proceedings also establishes the judicial nature of the proceedings.
(9) The impugned notice has to be examined in the light of these provisions. The notice issued to each of the petitioners is in identical terms. except that the name of each of them has been mentioned in the text. The operative part of the notice in respect of petitioner No. I reads as follows : 'Whereas from the report of Sho B. Pur it appears that you Bimal Kumar Singh s/o Shatrughan Singh r/o Madan Pur Khadar B. Pur along with Ram Nain Singh have threatened one Shctaz s/o Mustata Hussain with dire consequences in front of Factory Gate (Cubic Factory) Mathura Road on 22-9-89. You also intended to pick up quarrel and remained aggressive. You have disturbed the public peace and tranquillity. That you are likely to do a wrongful act which may result in the breach of peace within the local limit of my jurisdiction and since I am satisfied from Police report against you. I.S.Vasudeva Rao. Sem South Distt. New Delhi do hereby require you to show cause why you should not be ordered to execute a personal bond in the sum of Rs, 5.000.00 with one surety in the like amount for keeping peace for a period of one year. The record shows that tins is a cyclostyled notice. In the first paragraph. the portion Bimal Kumar Singh onwards has been written out in hand in the blank space left for that purpose in the cyclostyled proforma In the second paragraph, the name of the Magistrate and the figure Rs. 5.000.00 denoting the sum of the bond have been written in the spaces kept blank for that purpose. In the second paragraph of the proforma, with regard to sureties, two alternatives are indicated which read 'with ane surety/two sureties' ; but, the second option has been scored out. Thus, it requires only one surety.
(10) A combined reading of Section 107 and Section 111 of the Code requires the Magistrate, when he receives actionable information on the basis of which be is of opinion that there is sufficient ground for proceeding, to pass a preliminary order. It should be in writing, setting forth : (i) the substance of the information received ; (ii) the amount of the bond ; (iii) the terms of the bond ; and (iv) the number of sureties, if any.
(11) In the present case, although the impugned notice has been issued on a cyclostyled proforma, yet it satisfies each of these requirements. The, first paragraph contains in writing the substance of the information received from the police. This is clear proof of application of mind. The second paragraph specifies the amount of the bond i.e. Rs. 5,000.00 ; the period of one year as the term of the bond ; as well as the requirement of one surety. The impugned notice is really a composite document conveying to the concerned person an order in writing for the purposes of Section 111 of the Code and requiring him to show cause why he should not be ordered to execute a bond under Section 107 of the Code.
(12) This apart, the record shows that the Magistrate recorder the statement .of each of the petitioners wherein he answered in the affirmative questions: if he had received the .order passed under Section 111 of the Code : and whether be understood the said order which was read over and explained to him. Further, on ; being asked whether be wanted to show cause, each of them stated that he did not admit the information in respect of him and that he claimed to be tried On this position being taken by the petitioners, the Magistrate made an order under Sub-section (3) of Section 116 of the Code requiring each of then to execute personal bond in the sum of Rs. 5,000.00 with one surety in the like amount for keeping peace 'until the conclusion of the inquiry'. He then accepted the bond and surety furnished by the petitioners and directed the case to come up on 8th of November 1989 for evidence That day the statement of Mohd. Shehtaz was recorded and the case was adjourned to 29th of November 1989 for recording further evidence. At that stage, the record of proceedings before the Magistrate, on being so required, was sent to this Court.
(13) In these circumstances, though the impugned notice has been drawn up and issued on a cyclostyled proforma, it cannot be said, for this reason alone, that the Magistrate made the preliminary order under Section 111 of the Code or issued the show cause notice under Section 107 of the Code in a mechanical manner and without application of mind.
(14) Ordinarily, on reading this conclusion, I would have remanded the ease to the Magistrate for further proceedings. In the present case, however, the maximum period of one year for which the petitioners could be ordered to execute a bond for keeping the peace has lapsed during its pendency in this Court, and counsel for the petitioners has asserted that bids clients have done nothing in the meanwhile which could breach the peace.
(15) In these peculiar circumstances, further proceedings against the petitioners in pursuance of the impugned notice under Sections 107/151 of the Code are dropped ; the petitioners are discharged ; and the bond and surety furnished by each of them is hereby cancelled.
(16) The petition is, accordingly, disposed of.