Patna High Court
Khetrabasi Sahu And Ors. vs Emperor on 5 December, 1917
Equivalent citations: 44IND. CAS.38, AIR 1918 PATNA 183
JUDGMENT Jwala Prasad, J.
1. The petitioners have been ordered by the Magistrate of Cuttack each to execute a bond of Rs. 100 with, two sureties in a like amount each to keep the peace for one year or in default to undergo simple imprisonment for the same period unless the required security is sooner furnished. The order is made under Section 118 read with Section 107 of the Code of Criminal Procedure.
2. Against this order the petitioners moved the District Magistrate of Cuttack under Section 125 of the Code. The District Magistrate rejected their petition summarily, saying that he had perused the grounds of motion and the judgment of the Magistrate and that he saw no reason whatever to cancel the bonds executed by the petitioners. Against this order of the District Magistrate the petitioners have now come to this Court.
3. The main contention of the petitioners has been that their petition to the District Magistrate under Section 125 was not legally disposed of, inasmuch as no opportunity was given to them or their Mukhtear to place their case before the District Magistrate. This ground has not been specifically taken in the petition presented to this Court but a letter, dated 2nd October 1917, purported to have been written to the learned Vakil for the petitioners by their Mukhtear who appeared for them before the District Magistrate has been filed. In this letter it is stated that the Mukhtear presented a petition, upon which the District Magistrate directed him to file a supplementary petition as the one filed was argumentative in nature. The amended petition was filed the next day when the District Magistrate had not come to Court, and it was sent to his house along with the first petition which set forth all the arguments on behalf of the petitioners. The District Magistrate in his order says that he perused the petition and also considered the judgment of the first Court and then rejected the petition summarily.
4. The petition under Section 125 of the Code could not be treated as an appeal, for there is no appeal from an order under Section 118 of the Code of Criminal Procedure. As there is a special Section 125, that petition could not be treated as a petition under Section 435 and, therefore, the Magistrate was not exercising either appellate or revisional jurisdiction in dealing with the petition in question. Section 125 of the Code gives power to the Magistrate to cancel any bond directed to be executed by order of any Court subordinate to him for reasons to be recorded in writing I do not think that it was incumbent upon the District Magistrate to hear the Mukhtear for the petitioners before disposing of the application under Section 125. Section 440 of the Code says that no party has any right to be heard either personally or by Pleader before any Court in the exercise of its re-visional power subject to the limitation of Section 439, Sub-clause 2, which specially provides for giving an opportunity to the accused to be heard in revision before any order is passed to his prejudice. So that unless the petition in question was an appeal or a revision which, as shown, it was not, the party had no right to be heard. The contention of the learned Vakil for the petitioners should be overruled. But I have heard the learned Vakil at length on the merits of the case and I have carefully gone through the judgment written by the Magistrate who tried the case. The proceedings before the Magistrate are not challenged as being in any way affected by illegality or any irregularity in the proceedings. It is, however, contended that there is no sufficient evidence of overt acts against the accused persons which would justify an inference that there was a likelihood of a breach of the peace to be committed by them. The Magistrate has addressed at length on this point. He has come to the conclusion that all the seven accused belong to a different faction in the village headed by accused No. 1. Khetrabasi and that the opposite party belong to the opposite faction and that the two parties are fighting for sometime; that the party of the accused is strong and overwhelming in numbers and are threatening with violence and harassing the opposite party in various ways. The Magistrate says that it has been satisfactorily proved that the accused persons threatened to beat Daitari Sahu and Uchhab Sahu, the opposite party, and harassed them in other ways and that there is every likelihood of a breach of the peace by them. The Magistrate has given specific instances when these violent acts of aggravation were committed by the accused under the orders of Khetrabasi. One instance is that the accused Daitari Sahu once threatened to beat him at the zemindar's kacheri. This is said as having been corroborated by the zemindar himself.
5. The accused persons are said to have gone to the house of Daitari Sahu and abused him filthily for his having deposed before the Inspector of Police in connection with the case. This is said to have been supported by the evidence of Lochan Sahu (P. W. No. 9). Daffadar (P. W. No. 11) says that the accused persons once threw brickbats into the house of Daitari Sahu. The chaukidar had to be directed to keep strict watch over the accused persons so that no breach of the peace might be committed. On the evidence the Magistrate has held that the accused and some other persons of their party held sittings at Khetra's house at intervals of 2 or 3 days at about midnight and that the people of the locality are all afraid of them.
6. It is contended by the learned Vakil for the petitioners that the overt acts alleged in this case were specific offences themselves and should have been dealt with under the Indian Penal Code instead of under Section 107 of the Code of Criminal Procedure. The argument appears to be inconsistent with the earlier part of the learned Vakil's argument where he said no overt act was proved. For an inference that there would be a likelihood of a breach of the peace it is necessary to show overt acts, but each overt act from which a breach of the peace could be inferred would be in itself an offence punishable under the Indian Penal Code. I cannot conceive an act from which an imminent danger of the breach of the peace could be gathered without that act being penal in itself. This is not a real distinction, but the distinction is that where the acts committed by the accused are of such a nature that the continuity of these acts, or the commission of similar acts by the accused is apprehended to be tending to breach of the peace, Section 107 would be applicable notwithstanding that the acts already committed by the accused constituted specific offences under the Indian Penal Code.
7. It was also contended that the acts in this case specified by the Magistrate were past acts of long standing and that there was no immediate apprehension of the breach of the peace.
8. From the summary of the findings of the learned Magistrate on the point that I have given above, it is apparent that these persons are in conspiracy to annoy and to harass the opposite party and that at intervals of 2 or 3 days meetings are held at the house of accused No. 1 and further that the opposite party is so much horrified that they remain confined. The opposite party consists of only two persons who are compelled to confine themselves in their houses and are prevented from carrying on their ordinary avocation. I could not imagine a stronger case for an action under Section 107, where the people of the whole village on the side of the accused have combined against two helpless persons.
9. The finding of the Magistrate if correct certainly justifies action under Section 107. The learned Vakil does not challenge the finding upon the ground that it is not based upon evidence, and as a matter of fact the evidence that has been placed before him goes to show that the findings are justified by the facts on the record.
10. I, therefore, do not find any ground for interfering in this case. I reject the petition.