Punjab-Haryana High Court
Pardeep Singh Son Of Naurang Singh, ... vs The State Of Punjab, The Senior ... on 29 January, 2003
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. The present petition under Section 402 of the Code of Criminal Procedure (for short Cr.P.C.) has been filed for quashing the report dated 1-4-2001. Annexure P-5 registered under Sections 107/151 Cr.P.C. and subsequent proceedings in pursuance thereto pending before the Sub Divisional Magistrate (East) Ludhiana.
2. The facts leading to the filing of the present petition as stated by the petitioners are that on 5-2-2001, the petitioners and uncle of petitioner No. 1-namely. Darshan Singh were attacked by Baldev Singh-respondent No. 5 and his associates. The petitioners and their relatives suffered numerous injuries and Darshan Singh was admitted for 6 days from 5-2-2001 to 11-2-2001. Pardeep Sinhg-petitioner No. 1 made a report of this occurrence to the Station House Officer. Police Station Sahnewal on the same day which was recorded as DDR No. 33 dated 5-2-2001, Annexure P-2. It is the case of the petitioners that instead of taking action against the persons who had attacked them and their relatives for the offences under Sections 323/324/325/452/506/148/149 IPC at Police Station Sahnewal. The petitioners were arrested and then were released on bail by the learned Judicial Magistrate First Class on 14-2-2001. Darshan Singh, the uncle of petitioner No. 1 in the meanwhile filed a petition i.e. Crl. Misc. 6403-M of 2001 for the grant of anticipatory bail in the said criminal case, which was allowed by this Court on 28-3-2001 (Annexure P-4). The petitioners also filed Crl. Misc. 10106-M of 2001 for directing the Station House officer Sahnewal, not to ask the petitioners to present themselves before the Judicial Magistrate First Class, Ludhiana as the challan/final report had not been presented and also for directing him to arrest respondents 4 to 9 in the said petition. This Court on 16-3-2001 on the statement of the learned counsel for the petitioners recorded that the said petition be restricted only for the relief regarding arrest of the accused-respondents in the cross case and regarding transfer of the investigation to some other police officer in respect of cross case at the instance of the petitioners because no action had been taken by the police in the cross case. The counsel further stated that the first prayer regarding not to present themselves in Court till challan/final report is filed may be treated as not pressed at the stage. After obtaining the order of anticipatory bail passed on 28-3-2001. Darshan Singh went to respondent No. 3 i.e. Station House Officer, Police Station Sahnewal for furnishing his bail bonds. However, he was detained and was sent to the lock up. At that time, Darshan Singh was accompanied by his surety Sadhu Singh son of Babu Singh. It is alleged that the Station House Officer, Police Station was doing all this at the behest of respondent No. 5-Baldev Singh son of Gurdial Singh resident of village Katani Kalan as also his father Gurdial Singh. Despite the pendency of Crl. Misc. 10106-M of 2001 in this Court for withdrawing case from respondent No. 3-Station House officer Police Station Sahnewal in which notice had also been issued, the Station House officer paid little heed to the said proceedings. Besides he did not honour the order granting anticipatory, bail by this Court on 28-3-2001 (Annexure P-4) in Crl. Misc. 6403-M of 2001. Said Darshan Singh was illegally arrested and his surety who was accompanying him to the police station rushed to bring some respectable persons who apprised the Station House officer not to detain him. Station House Officer having realised his mistake called respondent No. 5-Baldev Singh to the police station and got registered report under Sections 107/151 Cr.P.C. just to legalise the illegal arrest of arrest of Darshan Singh.
3. The respondents Nos. 1 and 2 through Assistant Superintendent of Police filed reply. Besides ASI Ram Das-respondent No. 4 filed his separate reply. In the replies, it is stated that in case FIR No. 10 dated 5-2-2001 both the complainant and the accused party had received injuries and after investigation, the imvolvement of both the parties in the commission of various offences was established and as such both the parties had already been put in Court. It is further stated that an application dated 9-3-2001 was received by respondent No. 5-Baldev Singh from his Unit through his Commanding Officer. In connection with that application. ASI Ram Dass-respondent No. 4 had gone to village Katani Kalan to make an enquiry on 1-4-2001. During the course of enquiry, both the parties were summoned in the village. All the four petitioners and their companion Darshan Singh tried to grapple with Gurdial Singh, father of respondent No. 5. Finding eminent apprehension of breach of peace respondent No. 4 apprehended Darshan Singh at the spot whereas petitioners managed to run away. In these circumstances, the petitioners and Darshan Singh were sent and produced before the learned Sub Divisional Magistrate Magistrate (E) Ludhiana for initiating the proceedings under Sections 107/150 Cr.P.C. against the petitioners and under Sections 107/151 Cr.P.C. against Darshan Singh.
4. Learned counsel for the parties have been heard. Learned counsel for the petitioners has contended that the learned Sub Divisional Magistrate on 1-4-2001 and on 5-4-2001 has passed cryptic orders and has passed the same in gross violation of the principles enunciated by the Hon'ble Apex Court in Madhu Limaye v. S.D.M. Monghyr AIR 1971 SC 2486. He has further contended that mandatory provisions of Section 111 Cr.P.C. has not been complied with and, therefore, the proceedings are liable to be quashed. In support of this contention, he has referred to a judgment of the Hon'ble Delhi High Court in Jagdip and Anr. v. State 1987 (2) RCR 480.
5. On the other hand, the learned counsel for the respondents has contended that the petitioners were making hue and cry and, therefore, the proceedings have been rightly initiated against them to enable the parties to maintain peace.
6. In order to appreciate the respective stand of the parties, the order dated 1-4-2001 passed by the learned Sub-Divisional Judicial Magistrate (E) Ludhiana may be noticed. The same reads as under:-
"Today, the Kalandar is produced in the Court. The defendant is present in police custody. He should furnish a bond for Rs. 20,000/- failing which he be sent to judicial lock up and be present in the Court on 5-4-2001."
7. Thereafter, the case was taken up on 5-4-2001 and the learned Magistrate passed the following order:-
"File presented, Muchalke presented by the counsel for the defendants, which were allowed. The Investigation Officer and the complainant be summoned and the file be presented on 23-4-2001 before the Court. Bail on bond of Rs. 20,000/- in respect of each person is allowed."
8. The provisions of Section 111 Cr.P.C. read as follows:-
"111. Order to be made.-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 made an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the terms for which it is to be in force, and the number, character and class of sureties (if any) required."
9. The above provisions provide that the Magistrate shall make an order in writing setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be in force and the number and class of sureties (if any) required. The object of the security proceedings under Cr.P.C. is to prevent to breach of peace. However, before taking steps for arrest, the Magistrate must have reasons to fear for the breach of peace and it must appear to him that such breach of peace cannot be prevented otherwise than by immediate arrest of the person. A perusal of the above orders dated 1-4-2001 and 5-4-2001 do not show any application of mind by the learned Magistrate setting forth the substance of the information received or as to whether there was application of mind on the part of the Sub Divisional Magistrate showing that there was threat of breach of peace. The orders are clearly cryptic. In Madhu Limaye's case (supra), the Hon'ble Supreme Court made the following meaningful observations:-
"It has to be noticed that, when proceedings are contemplated under Section 107, the Magistrate takes action when he is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity only after forming an opinion that there is sufficient ground for proceeding against him. The Magistrate cannot start the proceedings merely because of the information received by him. Pursuant to the information, the Magistrate was to form his opinion that there is sufficient ground for proceeding. This opinion can be formed on the basis of the information supplied to him if he finds that the information is given in sufficient detail and is reliable enough to justify his acting on its basis. In cases where the information given is not of such nature, it will be the duty of the Magistrate to hold further inquiry and satisfy himself that it is a fit case where action should be taken because sufficient grounds exist. There may be cases where the information may be received from the Police in which case the Magistrate may examine all the police papers and satisfy himself that there do exist sufficient grounds for him to take the proceedings as requested by the Police. There may be cases where the proceedings may be instituted at the instance of a private complainant who may be apprehending breach of the peace by the person complained against. In such cases, the Magistrate is bound either to hold some enquiry himself by examining witnesses on oath or to have an inquiry made through the police so that he may be able to form a correct opinion as to the existence of sufficient grounds for proceedings. It is after the Magistrate has taken these steps that he can proceed to make order under Section 112 (now Section 111 Cr.P.C.).
10. When making that order, he has to record in it in writing the substance of the information received which necessarily means the part of the information which was the basis of his opinion that sufficient grounds exist for initiating the proceedings. It is at this preliminary stage that the Magistrate is thus required to ensure that a prima facie case does not exist for the purpose of initiating proceedings against the person who is to be called upon to furnish security for keeping the peace.
After the order under Section 112 has been issued, the procedure to be adopted is that contained in Sections 113 and 114.
If such person is present in Court, the order under Section 112 has to be read over to him and, if he so desires, the substance thereof has to be explained to him. If he is not present in Court, the Magistrate has to issue a summons requiring him to appear, or, when such person is in custody, a warrant, directing the office in whose custody he is to bring him before the Court."
11. The above authoritative dictum of the Apex Court clearly spells out the procedure for the Magistrate to follow before passing an order as contemplated under Section 111 Cr.P.C. Besides, in the reply, it has been stated that security proceedings do not relate to any cognizable offence but these are on preventive measure to check the prevention of cognizable offences and, therefore, there was no need to record the statement of witnesses in the security proceedings. The Hon'ble Delhi High Court in Jagdip's case (supra) however held as follows:-
"The perusal of the two reports of the police officers which resulted in the registration of a case under Section 107/151 Cr.P.C. also indicate that petitioners were raising hue and cry and were threatening the public at large that they would take revenge against the person who will support Harish Pandit. In spite of the interference of the Police officers, the petitioners continued extending such like threats. In this report, the Police Officers have not named any person who happened to be present at that place. They did not record the statement of any witness in support of these averments. This flimsy story cannot be believed. It just cannot happen in this manner. In the normal course, the threats can be extended to a particular person who is known to be the close friend or relation or a sympathiser or their adversaries. One cannot expect from a person with some sense to create a sensation at any place without any rhyme or reason.'
12. The Magistrate having clearly failed to apply his mind to the information received and having failed to set forth the substance of the information received and putting the same to the petitioners, besides also failing to satisfy himself as to there being any threat or breach of peace, in my opinion, the initiating of proceedings under Sections 107/151 Cr.P.C. are in violation of the Supreme Court decision in Madhu Limaye's case (supra). Therefore, further continuation of the proceedings would be an abuse of the process of the Court. It may also be noticed that for the offences attributed to the petitioners, case FIR No. 10 dated 5-2-2001 already stands registered at police station Sahnewal in which both the parties are involved. Parties would face their trial in accordance with law.
13. For the foregoing reasons, this petition is allowed. The report dated 1-4-2001 Annexure P-5 and all the consequential proceedings thereto are quashed.