Madhya Pradesh High Court
Meenu Alias Sachin Jain vs The State Of Madhya Pradesh on 27 September, 2017
1
M.Cr.C.No.5182/2016
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
M.Cr.C.No. 5182/2016
Meenu @ Sachin Jain
S/o Komalchand Jain,
Aged 33 years
Resident of Village- Chandi Choupra,
Police Station- Jabera,
District- Damoh, M.P.
Petitioner
Vs
1. State of M.P. Through
District Public Prosecution,
District-Damoh, M.P.
2. State of M.P. Through
Police, Jabera, District-Damoh, M.P.
3.Sub-Divisional Magistrate (SDM)
Tendukheda, District-Damoh, M.P.
Respondents
...............................................................................................................
Present: Hon'ble Shri Justice C.V. Sirpurkar
...............................................................................................................
Shri Sourabh Singh Thakur, counsel for the petitioner.
Shri Akhilendra Singh, Government Advocate for the
respondents/State.
...............................................................................................................
ORDER
(27-09-2017)
1. This Miscellaneous Criminal Case has been instituted on an application under Section 482 of the Cr.P.C. invoking inherent powers of the High Court. It is directed against the order dated 02.03.2016 passed by the Court of First Additional Sessions Judge, Damoh in criminal revision no.42/2014, whereby learned Additional Sessions 2 M.Cr.C.No.5182/2016 Judge had affirmed the order dated 02.04.2014 passed by the Court of Sub-Divisional Magistrate, Tendukheda, District-Damoh in Istegasa No. 01/2013 of Criminal Case No. 575/2013 under Section 122 (1)(b) of the Cr.P.C.
2. The facts giving rise to this miscellaneous criminal case may be summarized as hereunder. S.H.O, P.S.-Jabera, District- Damoh instituted a case under Section 110 of the Cr.P.C. against the petitioner Meenu @ Sachin Jain alleging that the petitioner is a habitual offender. Three criminal cases have been registered against him. He has let loose a reign of terror in the area comprised in P.S.-Jabera; therefore, the common public is afraid of lodging report against him in the police station or deposing against him in the Court. In these circumstances, feeling of insecurity is prevailing in the society and there is apprehension of breach of peace. Petitioner Meenu @ Sachin is a dare devil and it is dangerous for the society to leave him free to commit offences; therefore, it would be appropriate to bind him over for keeping peace and maintaining good behaviour, particularly in view of the Vidhan Sabha and Lok-Sabha Elections due to be held in the years, 2013 and 2014. After following due procedure, the petitioner was directed by order dated 18.02.2013 passed by the Sub- Divisional Magistrate, Tendukheda, to furnishing a bond in the sum of Rs.10,000/- for maintaining good behaviour and keeping peace for a period of two years. Accordingly, the petitioner furnished a bond with one surety in the sum of Rs.10,000/- on 18.02.2013. He bound himself to be of good behaviour towards the union of India and the citizens of India. The text of the bond is herein below reproduced:
"eSa ehuw mQZ lfpu tSu firk dksey pUn tSu irk p.Mh pkSijk] Fkkuk tcsjk] rsanw[ksMk ls ;g vis{kk dh xbZ fd /kkjk 110 tk-QkS- ds izdj.k pyus ;k nks o"kZ dh vof/k ds fy, Hkkjr ljdkj vkSj Hkkjr ds lHkh ukxfjdksa ds izfr lnkpkj ojrus ds fy;s ca/ki= fy[kwWA blfy, eSa blds }kjk vius dks vkc) djrk gWw fd mDr vof/k ds nkSjku ;k tc rd mDr tkWp lekIr ugha gks tk,s Hkkjr ljdkj vkSj Hkkjr ds lHkh ukxfjdksa ds izfr lnkpkj ojrwaxk vkSj esa blds }kjk vius dks vkc) djrk gwW fd ;fn 3 M.Cr.C.No.5182/2016 mlesa ls dksbZ pwd dh xbZ gks rks esjk 10]000@ :i;s ¼vadu nl gtkj :i;s½ dh jkf'k Hkkjr ljdkj dks lefiZr dh tkosxhA"
3. Subsequently, on 01.11.2013, S.H.O., P.S.-Jabera filed another Istegasa against the petitioner Meenu @ Sachin alleging that after furnishing the aforesaid bond, he had committed the offence punishable under Sections 147, 148, 353, 332, 186, 394 and 506 of the IPC on 23.06.2013. The same has been registered in P.S.- Jabera as crime no. 384/2013 and charge-sheet no. 329/2013 has been filed in the Court of Chief Judicial Magistrate, Damoh on 01.08.2013. As such, the petitioner has committed the breach of the terms and conditions of the bond furnished by him on 18.02.2013. Therefore, it was prayed that the bond be forfeited and the amount of Rs.10,000/- be recovered from the petitioner and under the provisions of Section 122 (1) (b) of the Cr.P.C., petitioner be taken into custody and detained in prison until the expiry of period of bond.
4. By order dated 02.04.2014 passed by the Sub-Divisional Magistrate, Tendukheda in Istegasa No. 01/2013, Criminal Case No. 555/2013, learned Sub-Divisional Magistrate observed and directed as follows:
"laiw.kZ izdj.k ds voyksdu ,oa rF;ksa ds foospu ls le{k esa fu"d"kZ vk;k gS fd vukosnd }kjk Lo;a /kkjk 110 dk vijk/k Lohdkj dj Lo;a dks ca/kfdr djk;k x;k FkkA mDr ifjokn of.kZr vijk/kksa dk [k.Mu ugh fd;k x;k Fkk] u gh lk{; vfHkfyf[kr djkbZ xbZ FkhA vr,o vukosnd vkH;kfld vkijkf/kd izo`fRr dk gS] fl) gksrk gSA /kkjk 110 n-iz-la- dk ca/ki= 02 o"kZ dh vof/k ds lnkpkj gssrq fu"ikfnr fd;k x;k Fkk] ftldk mYya?ku vukosnd }kjk dkfjr vijk/k dz- 384@13 fnukad 23-06-2013 dh घटन }kjk fd;k x;k gSA vukosnd ds vkpj.k esa lq/kkj ugh ik;k tkrk gSA ftldk izHkko lekt ij fdlh u fdlh :i esa iM+ jgk gSA tgkW rd iz'u vf/kdkfjrk {ks= ls ckgj vijk/k dk gS rks ca/ki= laiw.kZ Hkkjr {ks= ds izfr fu"ikfnr fd;k x;k] pwWfd izdj.k bl U;k;ky; dk gS vr% fopkj.k dh vf/kdkfjrk U;k;ky; dks gSA bl izdj.k U;k;ky; }kjk ik;k x;k gS fd vukosnd ehuw mQZ lfpu tSu vkRet dkseypan tSu] fuoklh p.Mh pkSijk] Fkkuk tcsjk] ftyk&neksg }kjk ca/ki= fnukad 28-02-2013 dk mYya?ku fd;k x;k gSA vr% n.M izfdz;k lafgrk 1973 dh /kkjk 122¼1½¼[k½ ds rgr~ vukosnd dks ca/ki= dh lekfIr dh vof/k 17-02-2015 rd dkjkxkj 4 M.Cr.C.No.5182/2016 esa fu:) j[kus dk vkns'k ikfjr fd;k tkrk gSA vukosnd ls izfrHkwfr jkf'k 10000@& :i;k Hkh olwy fd;s tkus dk vkns'k ikfjr fd;k tkrk gSA vukosnd ds fo:) fxj¶rkjh okjaV tkjh fd;k tkosA"
5. Aforesaid order was challenged before the First Additional Sessions Judge, Damoh in Criminal Revision No. 42/2014. By order dated 02.03.2016 passed in aforesaid case, learned First Additional Sessions Judge affirmed the order and dismissed the criminal revision as being devoid of any substance.
6. Aforesaid orders passed by the learned Sub-Divisional Magistrate and learned First Additional Sessions Judge have been questioned by the petitioner Meenu @ Sachin Jain on the following two grounds:
(i) The bond dated 18.02.2013, the breach whereof has been reported to the Sub-Divisional Magistrate, was furnished for maintaining good behaviour. A plain reading of Clause (b) of sub-
section (1) of Section 122 of the Cr.P.C. reveals that it is applicable only to the bonds which have been furnished for keeping peace; therefore, the aforesaid provision is not applicable in the instant case.
(ii) Mere, arraignment of the petitioner in an offence cannot be taken to be a conviction for the same; therefore, it could not be said that the petitioner had committed a breach of terms and conditions of bond furnished by him for maintaining good behaviour. Therefore, the orders impugned are not sustainable in the eyes of law and deserve to be set-aside.
7. Learned Government Advocate for the respondents State has opposed the petition and has supported the impugned orders.
8. After going through the record and on due consideration of rival contentions, the Court is of the view that this Miscellaneous Criminal Case must succeeds in part for the reasons hereinafter stated:
9. The first contention that has been raised on behalf of the petitioner is that the bond that had been furnished by the petitioner and accepted by the learned Sub-Divisional Magistrate is explicitly for the 5 M.Cr.C.No.5182/2016 purpose of maintaining good behaviour. There is no mention therein for keeping peace. Section 122 (1)(b) of the Cr.P.C. comes into operation only where there is a breach of terms and conditions of a bond for keeping peace in pursuance of the order of the Magistrate under Section 117 of the Cr.P.C. Therefore, in the instant case, aforesaid provision is not applicable. Learned counsel for the petitioner has invited attention of the Court to the judgment rendered by the Punjab and Haryana High Court in the case of Anoop Singh Vs. State of Punjab, 2015 (3) PLR 346.
10. It may be noted in this regard that the proceedings against the petitioner were initiated under Section 110 of the Cr.P.C.. The show- cause notice that may be issued under Section 110 of the Cr.P.C. is for good behaviour and not for maintaining peace. Under Section 117 of the Cr.P.C. orders to give security may be passed either for keeping peace or for maintaining good behaviour, as the case may be. In the instant case, order dated 18.02.2013 was made in general terms and the petitioner was directed to furnish bond for keeping public peace; however, the bond that was actually filed on 18.02.2013 was for maintaining good behaviour.
11. The Supreme Court while upholding the Constitutional validity of Chapter VIII of the Cr.P.C. relating to security for keeping peace and for good behaviour has held in the case of Madhu Limaye and another Vs. Sub Divisional Magistrate, Monghyr and others, 1970 (3) SCC 746 as hereunder:
"47. The gist of the Chapter is the prevention of crimes and disturbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered. The acting being preventive is not based on overt act but on the potential danger to be averted. These provisions are thus essentially conceived in the interest of public are also in the interest of the general public. If prevention of crimes, and breaches of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life. there can be no doubt that they are in the interest of public order. As we have shown above 'public order' is an elastic expression which takes within 6 M.Cr.C.No.5182/2016 it various meanings according to the context of the law and the existence of special circumstances. This power was used in England for over 400 years and is not something which is needed only for administration of colonial empires. Its need in our society today is as great as it was before the British left. We find nothing contrary to article 19 (1) (a),(b), (c) and (d) because the limits of the restrictions are well within Clause (2), (3), (4) and (5). We accordingly hold the Chapter as explained by us to be constitutionally valid".
12. Section 122 (1) (b) of the Cr.P.C. is reproduced herein below for ready reference:
"Section 122 (1) (b)- If any person after having executed a bond without sureties for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor- in- office, to have committed breach of the bond, such Magistrate or successor-in-office may, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law."
(Emphasis supplied)
13. A bare perusal of Section 122 (1) (b) reveals that it refers specifically of a bond executed with or without the surety for keeping peace in pursuance of the order of the Magistrate under Section 117. It does not refer to a bond furnished for maintaing good behaviour at all, making it abundantly clear that it would not be applicable where a bond has been furnished for maintaining good behaviour as required under Section 110 of the Cr.P.C. This view of the Court is fortified by the observations made by the Punjab and Haryana High Court in the case of Anoop Singh (supra) in paragaph no. 14, which reads as follows:
14. A perusal of the above would show that as per sub-section 1(a), the same applies to a person, who has been ordered to give security under Section 106 or Section 107 but does not give such security on or before the date within which period the security is to be given/commences. Clause (1) (b) thereof deals with a person, who 7 M.Cr.C.No.5182/2016 having after executed a bond with or without sureties in pursuance to an order of the Magistrate under Section 117, commits breach of bond. It is to be noted that the person to whom this clause applies is where he has executed a bond for keeping peace in pursuance to an order under Section 117 of Cr.P.C., apart from providing for the other requirements, which have to be fulfilled for ordering the arrest and detention in prison of that person until the expiry of period of bond. This Section thus applies where a bond has been executed by a person for keeping peace and not for any other type of bond such as bond for good behaviour etc.
14. It follows, therefore, that invocation of powers of Magistrate under Section 122 (1) (b) of the Cr.P.C. in the instant case was utterly misconceived because the bond that could have been asked for from the petitioner and that was ultimately filed by him related to maintaining good behaviour and not for keeping peace. Thus, he could not have been directed to be arrested and sent to jail for remaining period of bond. As such, learned First Additional Sessions Judge also committed grave error in failing to appreciate the aforesaid distinction. Thus, the directions relating to arrest and confinement of petitioner in prison for remaining period of bond, was misconceived and unsustainable in the eyes of law. Hence, this part of direction deserves to be set-aside.
15. Now the question remains for consideration is whether the part of the impugned direction relating to forfeiture of the bond and recovery of amount of Rs.10,000/- can be up-held ? In this regard, placing reliance upon the judgment passed by the Telangana and Andhra Pradesh High Court in the case of Raigir Balaih Vs. State of Telangana and others, 2016 (2) Andh LD (Criminal) 110 (order dated 11.03.2016 passed in W.P. No. 7869/2016), it has been argued that mere arraignment in an offence cannot be taken to be a conviction, whereby it can be said that the petitioner had committed breach of bond furnished by him for maintaining good behaviour.
16. It may be noted in this regard that in the instant case the petitioner has not only been arraigned in aforesaid case but after 8 M.Cr.C.No.5182/2016 investigation, the police also filed a final report against him in the Court. What is required for forfeiture of bond and recovery of amount of Rs.10,000/- mentioned therein is subjective satisfaction of the Executive Magistrate that a breach of bond has occurred. If an offence is said to have been committed, framing of charge or trial or conviction is not a sine qua non for recording a subjective satisfaction that a breach of terms and conditions of the bond has occurred. If by filing of final report in a criminal case against the person furnishing bond, in the facts and circumstances of that particular case, satisfies the Magistrate that the breach has occurred, he need not wait for either framing of charge or trial or conviction of that person in that offence.
17. Learned Single Judge of the Madras High Court has held in the case of Santhosh @ Santhoshkumar Vs. The First Class Executive Magistrate and Revenue Divisional Officer, Udumalpet Tiruppur District and another, (Order dated 24-7-2017 passed in Crl.RC.No.723 of 2017 ) reads as hereunder:
".......the language used in section 122 (1) (b) of the Code is that : ''Is proved to the satisfaction of such Magistrate or his successor in office, to have committed breach of bond''. Therefore, the proven factor to the satisfaction of the Magistrate concerned is, as to whether the conditions of the bond has been violated by the person or not.
16. Here, in the case in hand, unmindful of the number of cases filed against the petitioner, even after execution of the bond, the petitioner had involved in two cases, because of which, he has been arrested, and he had been in jail at the time of consideration of the violation of the bond condition,on his part, for invocation of section 122 (1) (b). Considering these aspects, this court is of the considered view that, these materials are enough to satisfy the Executive Magistrate within the meaning of section 122 (1) (b) of the Criminal Procedure Code. Since it is not the case of the petitioner that he has not been given an opportunity to confront with the request made by the 2nd respondent, that he has violated at least on two occasions during the bond period, the petitioner cannot now turn around and say that the 1st respondent, Executive Magistrate has passed the impugned order without being satisfied, as contemplated under section 122 (1) (b) of the Code. Therefore, on considering all these aspects, I am of the considered view that the impugned order does not suffer with any infirmity, much less legal infirmity as projected by the learned counsel appearing for the petitioner. Therefore, the same is sustainable.9 M.Cr.C.No.5182/2016
17. In the result the revision case fails. Accordingly it is dismissed. Consequently, connected Criminal Miscellaneous Petition is closed."
18. In these circumstances, learned Sub-Divisional Magistrate committed no error, irregularity or illegality in holding that a breach of bond furnished by the petitioner had occurred and directing recovery of Rs.10,000/- from the petitioner. Consequently, that part of the order is liable to be upheld.
19. On the basis of foregoing discussions, this miscellaneous criminal case under Section 482 of the Cr.P.C. is partly allowed and the direction with regard to arrest and detention of the petitioner in custody for remaining period of bond is set-aside. However, the direction for recovery of Rs.10,000/- for the breach of bond furnished by the petitioner is upheld.
Certified copy as per rules.
(C. V. Sirpurkar) Judge sh IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.Cr.C.No. 5182/2016 Meenu @ Sachin Jain Vs. State of M.P. And others.
Post for:- 27/09/2017
(C.V. Sirpukar)
Judge