Orissa High Court
Babaji Sahoo And Ors. vs State Of Orissa And Ors. on 14 December, 1988
Equivalent citations: 1989CRILJ1872
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
ORDER D.P. Mohapatra, J.
1. The delinquents in the proceeding under Section 107, Criminal Procedure Code (for short 'the Code') have filed this application under Section 482 of the Code praying to quash the proceeding in Criminal Misc, Case No. 713 of 1988 pending in the court of the Executive Magistrate, Puri. The proceeding was initiated at the instance of the opposite parties 2 to 14 who are arrayed as the first party therein. The ground on which the proceeding is challenged is raised very often in such proceedings. It is this : The learned Magistrate issued the notices merely on the police report without holding any independent enquiry.
2. It appears from the records that oh getting the report of the Officer-in-charge, Kakatpur Police Station, the learned Executive Magistrate, Puri felt satisfied from the said report that there was apprehension of imminent breach of the peace and disturbance of public tranquillity and that action under Section 107 of the Code was necessary to be taken against members of the second party. Accordingly he noticed the petitioners on 5-10-88 to appear in his court on 15-10-88 and show cause as to why they should not execute bonds for Rs. 1,000/- with one surety each for the like amount to keep peace in the locality for a period of one year. On being served with the notice the notices have filed this application challenging the proceeding mainly on the ground noticed earlier. A further ground has been taken that the notice lacks particulars of the allegations against the petitioners and therefore it is bad.
3. The learned Counsel for the petitioners referring to the observations in some decided cases, to which I shall refer a little later, has urged that the learned Magistrate should not have issued the notice without holding some independent enquiry to ascertain the credibility of the informations contained in the police report. The learned Counsel for the opposite parties (first party) on the other hand contended that the petitioners have only been noticed to appear and show cause why they should not execute bonds for maintaining peace and tranquillity in the area. It is open to them to file their reply to the notice and refute the facts/allegations stated in the notice whereafter the learned Magistrate will enquire into the matter if he feels the necessity for it and pass appropriate orders in the proceeding. In short, the contention of the learned Counsel was that the challenge to the proceeding at this stage ( is premature and the petitioners have unnecessarily rushed to this Court before even filing their show cause in pursuance of the notice. As noticed earlier, these grounds are very often taken to challenge initiation of the proceedings under Section 107 of the Code.
4. Section 107 of the Code is one of the sections contained in Chapter VIII of the Code dealing with security for keeping the peace and good behaviour. The section is intended to prevent local clashes between persons over property or other objects of disagreement. It is preventive and not punitive; in other words, the section is not intended for the punishment of past offences but for the prevention of acts that may amount to or lead to a breach of the peace hereafter. As the matter affects the liberty of the subject who might not have been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law. As the proceedings under the section are not meant to be penal provisions for dealing with any offences but only for maintaining public peace and tranquillity not only expeditious action is called for but prompt dealing with the matter is also absolutely necessary. It is clear from the language of Section 107 that a Magistrate has no jurisdiction under the section to proceed against any person where there is no information against him. But there is no restriction as to the source of the information on which a Magistrate can act under the section. Therefore the Magistrate can draw up proceedings on the basis of a police report or the report of a Subordinate Magistrate or the information given by a private individual. Proceedings can also be drawn up on the basis of information derived from a previous trial of the person proceeded against wherein he was acquitted. But the information on which the proceeding is drawn up must be clear and definite so as to afford notice to the person proceeded against of what he is to meet. It is quite often found in proceedings under the section that the aggrieved party first approaches the police with his complaint on which the local police officer enters upon enquiry and prepares a report and submits it to the Executive Magistrate recommending action under Section 107 of the Code. Though it is within the powers of a Magistrate to refuse to issue process on a report made by a police officer even though the police officer is satisfied that there is an imminent danger to the public peace and makes a report to that effect to the Court, a Magistrate should not ordinarily brush aside the report because it is the duty of both Magistrate and the police to see that nobody breaks the law. It has however to be borne in mind that in such a case it was for the Magistrate to satisfy himself about the credibility of the police report. For the purpose he may hold such enquiry as he deems necessary. But it cannot be laid down as a general principle that in all cases where the Magistrate receives the police report he must embark upon further enquiry before issuing the process. The necessity for further enquiry depends on the facts and circumstances of the case, the nature of informations contained in the police report and other relevant matters. To hold otherwise will, in effect, amount to saying that the Magistrate has no jurisdiction to issue process in a proceeding under Section 107 on a police report and should always without exception, hold a further enquiry before issuing process. This not only goes against the language of the section but is likely to defeat the very purpose which the section is intended to serve. There is a clear distinction between issuing process to the delinquents asking them to execute interim bond during pendency of the proceeding under Section 107 and a notice requiring them to show cause why they would not be asked to execute interim bond. In the latter case no right of the party is decided The delinquent has the opportunity to file his reply to the notice and can persuade the Magistrate to drop the proposal to require him to furnish interim bond. In the former case the Magistrate has already made up his mind to require the delinquent to furnish bond thereby affecting se, as noticed earlier, the delinquents have approached this Court on getting the notice requiring them to appear and show cause why they should not execute bonds.
5. Examining the facts of the present case in the light of the discussions in the foregoing paragraphs, it is clear that the proceeding was initiated by the learned Magistrate on getting the report from the Officer-in-charge of Kakatpur Police Station, The notice clearly specifies the nature of the allegations which are required to be met by the delinquents, the amount for which the bond was to be executed by them, the number of sureties and the period of the bond. As such, the notice contained all relevant particulars and it cannot be said to be a vague and indefinite one to which the delinquents would have difficulty in filing their show cause. Further, from the prosecution report submitted by the Officer-in-charge of the Police Station which is available in the lower court record it appears that the report is a fairly detailed one giving particular instances of overt acts, the controversy between the parties which led the police officer to believe that there is likelihood of breach of the peace. The dispute, as it appears from the report and also the notice is over possession of some Govt. land. On perusal of this report the learned Magistrate felt satisfied that there was apprehension of breach of the peace and action was necessary to be taken against the delinquents under Section 107 of the Code. There is nothing in the record and the learned Counsel for the petitioners has not been able to point out any circumstance in particular o suggest that the order of the learned Magistrate initiating the proceeding was passed mechanically without application of his mind. From the very nature of the informations and the details given in the police report if he had no doubt about its credibility and felt that the material was sufficient to initiate proceeding and issue process to the delinquents, in my view, he committed no serious illegality or irregularity and it cannot be said that continuing the proceeding will be an abuse of the process of court. Further, as discussed earlier, the petitioners have only been noticed to appear and file their show cause before the learned Magistrate. The order is therefore a purely interlocutory one and does not seriously prejudice the petitioners. Therefore no interference with the proceeding at this stage in exercise of the inherent jurisdiction of this Court is called for.
6. Though sufficient time was granted to the learned Counsel for the petitioners and he cited several Decisions, (1975) 41 Cut LT 674 : 1975 Cri LJ 1923 (Bhim Naik v. State) 1976 Cri LJ 1660 (All) (Bindbashi v. State of U.P.) (1987) 64 Cut LT 273 : 1988 Cri LJ 218 (Rama Chandra Jena v. Muralidhar Onjha and 1988 OCR 22 (S.K. Dora v. State) he could not cite any decision laying down a general proposition in the manner contended by him. No doubt in some cases depending on the facts and circumstances thereof the process issued by the Magistrate has been quashed on the ground that the order initiating the proceeding was passed by the Magistrate mechanically without due application of mind. At the cost of repetition 1 would like to reiterate here that decision depends on the facts and circumstances of the particular case and no general proposition can be laid down on the question. Any attempt to generalise this matter, keeping in view the intent and purpose of the section and the express language of the provision in my view will be improper and its consequence grave.
7. On the foregoing discussions 1 find no scope to interfere with the proceeding at this stage. The application is accordingly dismissed.