Madhya Pradesh High Court
Bugdad vs The State Of Madhya Pradesh on 14 November, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
1
MCRC No.39668/2022
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 14th November, 2022
MISC. CRIMINAL CASE No. 39668 of 2022
BETWEEN:-
BUGDAD S/O NOOR MOHAMMAD JI, AGED ABOUT 42 YEARS,
OCCUPATION: VEGETABLE SELLER ADDARSH MOHALLA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ABHISHEK TUGNAWAT)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH SUB DIVISIONAL MAGISTRARE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R.S. SURYAVASHI)
Reserved On: 04.11.2022
This petition coming on for order this day, Hon'ble Shri Justice
Satyendra Kumar Singh passed the following:
ORDER
Satyendra Kumar Singh, J., This petition under Section 482 of the Code of Criminal Procedure, 1973 (2 of 1974) [in short Cr.P.C.] has been preferred seeking quashment of order dated 22.06.2022 passed by the Court of Additional Sessions Judge, Jawad, Distt. Neemuch in Criminal Revision No.17/22, whereby order dated 10.06.2022 passed by the 2 MCRC No.39668/2022 Court of Executive Magistrate/ S.D.M., Sub Division Jawad, Distt. Neemuch directing to detain the applicant in imprisonment for remaining period of the bond is over, was affirmed.
2. Brief facts giving rise to this petition are that SHO Police Station Jawad filed an Ishtagasa bearing No.38 dated 11.05.2022, under Section 110 of Cr.P.C., before the Court of Executive Magistrate Jawad, Distt. Neemuch stating therein that applicant was involved in various crime relating to gambling, assault and threatening and had become danger to public at large, therefore, prohibitive order be passed against him. Learned Executive Magistrate vide order dated 01.06.2022 issued notice under Section 111 of Cr.P.C. to the applicant and after his appearance on 03.06.2022, directed him to execute an ad interim bond of Rs.50,000/- for maintaining good behaviour until the conclusion of inquiry. On the very next date i.e. 04.06.2022, at about 16:55 hours, applicant alongwith his wife abused, threatened and assaulted Idreesh and his daughter Simran with iron pipe causing injuries to them and on the basis of a complaint made by Idreesh, FIR bearing Crime No.235/2022 for the offences punishable under Section 341, 323, 294, 506 and 94 of IPC was lodged against him at Police Station Jawad, Neemuch.
As the applicant after furnishing a bond of Rs.50,000/- for keeping good behaviour, violated the conditions of bond and did not maintain good behaviour, SHO Police Station Jawad, Neemuch filed Ishtgasa No.04/2022 under Section 122 of Cr.P.C. before the Court of Executive Magistrate, Jawad, Neemuch for confiscating the bond furnished by the applicant and also for sending him in custody for remaining period of bond is over. On the basis of which cirminal case bearing No.10/MJC/122/22, was registered against him, wherein 3 MCRC No.39668/2022 learned Executive Magistrate issued notice to the applicant and thereafter, on 10.06.2022 recorded the statement of the applicant as well as investigating officer and on the same day vide impugned order dated 10.06.2022, confiscated the amount of bond furnished by the applicant and directed to detain him in imprisonment for remaining period of bond is over. Applicant filed criminal revision against the said order before the Court of Additional Sessions Judge, Jawad, Neemuch which was rejected vide impugned order dated 22.06.2022.
3. Learned counsel for the applicant submits that it is apparent from the record that the ad interim order dated 03.06.2022 passed by the Executive Magistrate, Jawad under Section 116(3) of Cr.P.C. was passed in stereotype manner without commencing to inquire into the truth of the information alleged by the police. He further submits that it is also apparent from the Ishtgasa No.04/2022 dated 08.06.2022, filed under Section 122 of Cr.P.C. that matter relating to Crime No.235/2022 for the offence punishable under Section 341, 323, 294, 506 and 94 of IPC was under investigation and truth of the facts of the said FIR is yet to be investigated. At the relevant point of time except FIR, lodged by the Idreesh, nothing else was produced on record, therefore, the impugned order confiscating the applicant's bond and directing to detain him in imprisonment for remaining period of bond is over, was passed without any basis. He has placed reliance on the order dated 11.05.1982 passed by the Gauhati High Court in the case of Chadreshwar Bhattachargee vs. State of Assam in Cr.R. No.4/1982 and the order passed in the case of DA Kumar & ors Vs. State of Chhatisgarh & another reported in 2011 sCC Online Chh 19 :
(2011) 4 CGLJ 303..
4. Learned counsel for the respondent/State has opposed the prayer 4 MCRC No.39668/2022 and submits that applicant is a habitual criminal and several other criminal cases were registered against him. After executing the bond, he breached the condition of the bond and committed crime. Impugned order was passed in accordance with law. There is no illegality or jurisdictional error in the impugned order. Therefore, this petition is devoid of merit, and the same may be dismissed.
5. Heard learned counsel for the parties and perused the record.
6. Before going into the merits of the case, it is apposite to refer the relevant provisions as stated in the order dated 11.05.1982, passed by the Guahati High Court in in the case of Chadreshwar Bhattachargee vs. State of Assam (Supra), which are as follows:-
4. The law relating to security for keeping the peace and for good behaviour is to be found in Chap. VIII, Sections 106 to 124, of the Cr. P.C. Section 106 deals with security for keeping the peace on conviction and Section 107 deals with security for keeping the peace in other cases. Under Sub-section (1) of Section 107 when an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranrquillity and is of opinion that there is sufficient ground for proceeding, he may, "in the manner hereinafter provided", require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. Under Sub-section (2) proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity, instead of District Magistrate or Sub-Divisional Magistrate, as was provided under the old section.
This section corresponds to the same section of the old Code but Sub-sections (3) and (4) have been omitted. Under Section 111 , which corresponds to Section 112 of the old Code, when a Magistrate acting under Section 107 deems it necessary to require any person to show cause under that Section, he shall 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 5 MCRC No.39668/2022 in force, and the number, character and class of sureties (it any) required. Under Section 112, which corresponds to Section 113 of the old Code, if the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him. Under Section 116, which corresponds to Section 117 of the old Code, when an order under Section 111 has been read or explained under Section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. Under Sub-section (2) of Section 116 such inquiry shall be made, as nearly as may be practicable, "in the manner herein-after prescribed for conducting trial and recording evidence in summons cases."
5. The above is the procedure laid down for the inquiry. The expression "in the manner hereinafter provided" in Sub-section (1) of Section 107 referred to the above procedure. Under Sub-section (3) of Section 116, which corresponds to Sub-section (3) of Section 117 of the old Code, after the commencement and before the completion of the inquiry under Sub-section (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under Section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded. Under Sub-section (6) the inquiry shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceeding under this chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. Under Sub-section (7) where any direction is made under Sub-section (6) permitting the continuance of proceeding the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.
6 MCRC No.39668/20226. It may be noted that Sub-sections (6) and (7) have been newly added. As regards Sub-section (3) of Section 116 while the corresponding old Sub-section (3) of Section 117 started with "pending the completion of the inquiry under Sub-section (1)", the new Sub-section starts with "after the commencement and before the completion of the inquiry under Sub-section (1)". The difference in the language does not make any difference in the meaning though the present Sub-section puts the matter beyond doubt that the interim bond could be taken only after the commencement of the inquiry proceedings and before they are completed.
7. From the provisions of Sub-section (3) of Section 116 of Cr.P.C., it is apparent that the order to execute an interim bond with or without sureties, for keeping the peace or maintaining good behaviour can only be passed after the commencement and before the completion of the inquiry under Sub-section (1) of Section 116 of Cr.P.C. In the case of Madhu Limaye Vs Ved Murti (1970)3 SCC 739, it was clearly observed that the petitioners being brought under the process of Chapter VIII of Cr.P.C., an order was read over u/S 112 (111 of the new code) and if interim bonds were required from them the Magistrate ought to have entered upon the inquiry and satisfied himself, at least prima facie about the truth of the information in relation to the alleged facts. It was also observed therein, that the inquiry does not commence as soon as the delinquent appears and the order u/S 111 of the Code is read over to him. The bare allegations cannot form the foundation of the order for a bond and failing furnishing of it detention of the person. The 7 MCRC No.39668/2022 allegations have got to be inquired and tested.
8. In the instant case, learned Executive Magistrate vide order dated 01.06.2022, passed in criminal case no. 54/110 Cr.P.C./ 2022, registered on the basis of Ishtagasa bearing No.388/2022, under Section 110 of Cr.P.C., directed to issue preliminary notice u/S 110 of Cr.P.C. and on 03.06.2022, after appearance of the applicant, vide order dated 03.06.2022 directed to get executed the bond from him and fixed the matter for his reply. There is no indication of any inquiry having been made or evidence having been taken to ascertain the truth or otherwise of the allegations alleged against him. Hence, submissions made by the learned counsel for the applicant that since the inquiry as contemplated u/S 116 was not commenced in the matter, therefore the order dated 03.06.2022, passed by the learned Executive Magistrate under sub-
section (3) of Cr.P.C., directing applicant to execute an interim bond for maintaining good behaviour was without jurisdiction, has force.
9. Upon perusal of the record of criminal case no 10/Cr.P.C./2022, registered on the basis of Ishtagasa bearing No.04/2022, u/S122 of Cr.P.C., it is evident that the same was filed on the basis of FIR dated 04.06.2022, lodged by Idrish at P.S. Jawad. I/O N.S. Chandrawat in his statement nowhere stated that he started his investigation in the above matter and inquired about the truth of the allegations alleged therein.
8 MCRC No.39668/2022Admittedly, impugned order dated 10.06.2022, directing to detain the applicant in imprisonment for remaining period of the bond is over was passed only on the basis of statements of I/O N.S. Chandrawat and criminal past record of the applicant. Hence, submissions made by the learned counsel for the applicant that the aforesaid case bearing Ishtagasa No.04/2022 dated 08.06.2022, u/S 122 of Cr.P.C. was filed only on the basis of registration of FIR bering Crime No.235/2022 for the offence punishable under Section 341, 323, 294, 506 and 94 of IPC, without starting the investigation about the truth of the facts of the said FIR and at the relevant point of time except the said FIR, nothing else was produced on record, has also force.
10. In view of the aforesaid discussion, it is apparent that order dated 03.06.2022 passed by the Court of learned Executive Magistrate, Jawad, Distt.Neemuch (MP) under Section 116(3) of Cr.P.C. in Criminal Case No.54/110/2022 directing the applicant to execute an ad-interim bond for keeping the peace and maintaining good behaviour was without jurisdiction and impugned order dated 10.06.2022 passed in Criminal Case No.10/MJC/122/2022 directing to detain the applicant in imprisonment for remaining period of bond is over, was also passed without inquiring the fact that whether applicant had breached the conditions of the bond executed by him in pursuance of 9 MCRC No.39668/2022 order dated 03.06.2022. Hence, both the above orders alongwith order dated 22.06.2022 passed by the Court of Additional Sessions Judge, Jawad, Distt. Neemuch in Cr.R. No.17/22 are not sustainable.
Accordingly, this MCRC stands allowed and order dated 10.06.2022 and 22.06.2022 are set aside.
(Satyendra Kumar Singh) Judge vibha/-
VIBHA PACHORI 2022.11.15 10:35:32 +05'30'