Patna High Court
Surendra Singh And Ors. vs State Of Bihar on 10 January, 1978
Equivalent citations: 1978(26)BLJR656
JUDGMENT Shiveshwar Prasad Sinha, J.
1. This matter has been referred to Division Bench by a learned single Judge by his order dated 12th October, 1977.
2. The petition is for quashing the proceedings under Section 107 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), drawn up by order dated 18th July. 1977 and also for quashing the order dated 11th August, 1977 by which the petitioners have been asked to execute ad interim bond under Section 116(3) of the Code. The petitioners are the second party to the said proceeding under Section 107 of the Code,
3. The relevant facts are that there is a private limited company known by the name of M/s. Veena Theatre Pvt. Ltd. having its registered office at Patna, The petitioners as also opposite party No. 1 are the shareholders of the said company. Opposite party No. 2 is one of the employees of the company. It appears that a tussle is going on between the shareholders for taking over the management of the company, opposite party No. 1 has filed civil suit and also an application for injunction to stop the other party from removing him from the post of Managing Director of the company.
On 2nd July, 1977 as also on 4th July, 1977 opposite party No. 2, Digatnber Chaudhary, lodged a sanha at Police station Kotwali, Patna making several allegations of high-handed behaviour by the petitioners (Members of the second party). The police on making enquiry into the allegations submitted a report to the Sub-divisional Magistrate, Sadar, Patna, who passed an order on the 8th July, 1977 for issue of notice to both the parties to show cause as to why proceedings under Section 107 of the Code could not be drawn against them. The parties were asked to show cause by the 13th July, 1977. It appears that in pursuance of the said notice both the parties filed show cause and were also heard. The Sub-divisional Magistrate then passed an order in terms of Section 111 of the Code, on the 18th July, 1977 initiating proceedings under Section 107 of the Code and calling upon both the parties to show cause as to why they should not execute ad interim bond in terms of Section 116(3) of the Code of Rs. 1,000/- each for keeping peace for a period of one year.
4. The substance of information mentioned in the said notice was that the members of the second party were giving various types of threats to the members of the first party, such as exploding bombs in the premises of the Veena Cmemai a business run by the said company. It had also transpired that a man had been recently murdered within the presincts of the said cinema house and that there was good a deal of tension between the parties for capturing or retaining the management of the company. For these reasons it appeared to the learned Magistrate that a serious tension was there, threatening breach of the peace between the parties.
Both the parties were asked to show cause by the 23rd of July, 1977. In the meantime a police report was also received by the learned Sub-divisional Magistrate for action under Section 116(3) against the members of the second party.
5. In pursuance of the said notice both the parties filed their show cause and they were heard. Each party tried to justify his action on the ground of being legally entitled to conduct the management of the company. Each party complained that the other had no locus standi to manage the company. The petitioners, namely, the members of the second party, however, submitted that in absence of any fresh material to prove any emergency, no action under Section 116(3) of the Code was warranted against their party,
6. The learned Sub-divisional Magistrate, after perusing the cause shown by the parties and after hearing them, passed an order dated 11th August, 1977 calling upon the members of the second party to execute ad interim bond of Rs. 1,000/- each for maintaining peace "till the final order is passed in the main proceeding under Section 107 Cr. P.C."
7. The second party being aggrieved by the order dated 18th July, 1977 drawing up proceeding under Section 107 of the Code and also against the order dated 11th August, 1977 calling upon them to execute ad interim bonds moved this court against them. The matter was heard by a learned Judge, who, by his order dated the 18th October, 1977, has referred it to Division Bench.
It appears that one of the grounds on which the proceedings under Section 107 of the Code was challenged before him, was that unless the Magistrate was satisfied that the parties proceeded against were likely to do any wrongful act which may occasion breach of the peace or disturb the public tranquility, such a proceeding could not be initiated. The ground on which the direction to execute ad interim bond under Section 116(3) of the Code was challenged was that the proceeding under Section 116(1) of the Code had not commenced and, therefore, such an order was wholly without jurisdiction.
8. Mr. Prasad appearing for the petitioners has challenged the initiation of the proceedings under Section 107 of the Code, firstly, on the ground of vagueness of the substance of information, secondly, on the ground that the petitioners being lawful owners of Veena Theatre, any action taken by them towards obtaining its ownership could not be a wrongful act on their part and, therefore, no proceeding, much less a proceeding under Section 107 of the Code could be taken against them for such action.
9. The ground of vagueness of the substance of information has no merit for the simple reason that each party has shown cause and has even been heard on the cause shown by each. Necessarily it means that each party understood what they were required to explain, which further means that the substance of information was sot vague.
Similarly, there is no merit in the other part of his contention.
There can be no two opinion on the point that a proceeding under Section 107 of the Code is required to be initiated only where the breach of the peace is likely to be occasioned on account of a wrongful act on the part of the one or the other party to the proceeding. To quote one of the instances, which Learned Counsel for the petitioner himself suggested. If a person wants to enter into a house which is admittedly in his possession, he cannot be said to commit a wrongful act if he pushes away persons trying to obstruct him from entering into his house. If a breach of the peace is threatened on that account, the person to be bound down would not be the one who is rightfully entitled to enter into the house, but the one who has committed wrongful act in prohibiting the person in the exercise of his legal right.
In the instant case, however, the aforesaid analogy will not hold good. Both the parties claim to be acting in exercise of their right, which each one of them claims to be lawful. As to who is in the right or who is in the wrong, is a question of fact which will have to be decided on the evidence. It cannot be decided here in this proceeding. This much, however, is certain that one of them must be in the wrong. Necessarily, therefore, it follows that when a breach of peace is likely to be committed by both the parties trying to use force or threats to oust the other, such breach of the peace requires to be prevented by taking preventive action under Section 107 of the Code.
10. It is next contended that the notice dated 18th July, 1977 initiating the proceeding under Section 107 of the Code was bad because of its being a composite notice ; both initiating a proceeding under Section 107 of the Code as also calling upon the parties to show cause as to why they should not execute an ad interim bond in terms of Section 116(3) of the Code.
11. I do not think this argument has any merit, because the notice initiating the proceeding under Section 107 of the Code is clearly several from the notice calling upon the parties to show cause against the action under Section 116(3) of the Code. Where such is the position, the notice as a whole does not become bad.
12. It must therefore, be held that the petitioners have not been able to make out a case for quashing the proceeding under Section 107 of the Code initiated by order dated 18th July, 1977.
13. Coming now to the order dated 11th August, 1977, by which the petitioners have been called upon to execute interim bond in terms of Section 116(3) of the Code, the short argument on behalf of the petitioners is that the stage had not yet reached for passing such an order inasmuch as the inquiry envisaged under Section 116(1) of the Code had not commenced.
According to the Learned Counsel for the petitioners such commences only after the Magistrate proceeds to inquire into the truth of the information, after its substance bas been served on the person concerned and such person has appeared or is brought before him.
14. In the instant it is submitted, although the parties have appeared, the Magistrate has not proceeded to enquire into the truth of the formation, but only, as to who should be asked to execute ad interim bond. The order was, therefore, premature.
15. A series of decisions has been cited in support of the contention. In tact, it appears from the order referring this case to a Division Bench that it appeared to the learned single Judge that there was some conflict between some of the decisions cited. Be that as it may, the decisions cited are these:
(i) Jagdish Prasad Varma and Ors. v. The State A.I.R. 1957 Patna 106.
(ii) Jallaluddin Kunju v. State A.I.R. 1952 Tranancore Chochin 262
(iii) Madhu Limaye and Anr. v. Ved Murti and Ors. A.I.R. 1971 Supreme Court 2481)
(iv) Nokha Singh and Ors. v. Parvati Kuer and Anr. 1974 B.B.C.J. 460.
(v) Nathan Yadav and Ors. v. The State of Bihar and Ors. 1977 B.B.C.J. 357.
The first four mentioned decisions are of cases under the old Code, the last one is in respect of a case under the new Code. But this is immaterial in view of the identical nature of the relevant provisions in the two Codes. All the five case laws deal with the question as to when does the inquiry envisaged under Section 116(1) of the new Code (section 117(1) of the old Code) commence. On the basis of these decisions, it has been urged that taking the view expressed in either of the decisions, the proceeding cannot be said to have commenced in the instant case.
16. I will briefly relate the decisions in each of the above cases:
The Supreme Court in the case of Madhu Limaye and Anr. v. Ved Murti and Ors. A.I.R. 1971 S.C. 2481 has observed that inquiry is commenced when the Magistrate starts inquiry into the truth of the information.
In this case, the Magistrate truth action under Section 117(3) of the Code of Criminal Procedure, 1898; merely on the basis of the police report, without even questioning the Sub-Inspector or even examining the persons, who had reported about the over acts indulged judgment by a political party led by the petitioner, which was likely to cause breach of the peace. Their Lordships, therefore, held that the Magistrate has used the powers under Section 117(3)(old Code) against the petitioner without commencing to inquire into the truth of the information. Their Lordships, while allowing the petition observed that "No sworn statement of any kind was obtained by him and he adjourned the case for examination of the petitioners without summoning the witnesses in support of the information.
Relying upon the aforesaid observations of the Supreme Court, an argument was made in the case of Nokha Singh and Ors. v. Parvati Kuer and Anr. 1974 B.B.C.J. 460 that inquiry under Section 117(1) of the old Code, commenced only when witnesses are examined to support the truth of the allegation. A Bench of this court rejected the argument, distinguishing the decision of the Supreme Court in Madhu Limaye's case (supra) on the facts obtaining in the case before them. The distinguishing feature between the two cases was stated to be that in the case before them, after notice of show cause was served on the parties; the petitioners had appeared and had shown cause and there was also a police report. The petitioners has appeared again after receipt of the police report which steps were held to be for ascertaining the truth of the information. Such was not the position in the case before the Supreme Court. In that case beyond passing the routine orders, no steps were taken for ascertaining the truth of the information ; not even witnesses, having knowledge about the matter, were examined. This court in the case of Jagdish Prasad Verma and Ors. v. The State had held that the inquiry into the truth of the information commenced when the person proceeded against is present before the court or has been brought before the court and the Magistrate takes into consideration the existing circumstances to proceed further to call upon the person to execute ad interim bond, To a similar effect was the decision in the case of Jallaluddin Kunju v. State A.I.R. 1952 T.C. 262, on the question as to when an inquiry under Section 117(1), of the did Code (116(1) of the new Code),Commences. Both these decisions have had the approval of the Supreme Court vide the decision of the Supreme Court in the case of Madhu Limaye and Anr. v. S.D.M. Monghyr and Ors. .
The same question once again Cropped up before this court in the case of V. Nathan Yadav and Ors. v. The State of Bihar and Ors. 1977 B.B.C.J. 357. The circumstances in that case were that a proceeding under Section 107 of the Code, after having been duly drawn up, continued on for a period over six months and then the petitioners said that since the proceeding has been pending for more than six months, it stood terminated by virtue of Section 116(6) of the new Code. In that context, the petitioner relied on the decision of this court in the case of 1974 B.B.C.J. 460 (supra) in which the proceeding was held to have commenced when the petitioners appeared and filed their show cause and the respondents relied upon the decision of the Supreme Court in the case of A.I.R. 1971 Supreme Court, 2481 (supra) in which the proceeding was held to have not commenced even though the person proceeded against had been brought before the court and police report had been received, but witnesses had not been examined.
A bench of this court held that by virtue of the procedure prescribed under Section 116(2) of the Code for inquiry into the truth of the information, which was referable to Section 261 of the Code, the inquiry under Section 116(1) commences, even without taking of evidence, when the accused person is brought before the Magistrate and the particulars of the offence of which he is accused is stated to him and he is asked whether he pleads guilty or has any defence to make. In paragraph 6 of the said judgment, however, it was added that:
My considered opinion therefore, is that an enquiry as envisaged by Section 116 of the Code commences only when the Magistrate applied his mind to the facts of the case in presence of the person against whom an order is made under Section 111 of the Code.
Thus according to this decision an application of the mind by the Magistrate to the facts of the case in presence of the person against whom an order under Section 111 of the Code is made is the starting point of the commencement of the proceeding under Section 116(1) of the Code.
17. The procedure, which a Magistrate must follow, either for commencing an inquiry in respect of a proceeding under Section 107 of the Code, or for bringing the proceeding to its final conclusion, are laid in Sections 111 to 117 of the Code, Section 111, 112, 113. 114 and 115 of the Code deal with routine procedures in a proceeding under Section 107 of the Code, that is to say, of steps which require to be taken before setting upon to inquire into the truth of the information. After these requirements have been fulfilled, Section 116 of the Code prescribes that:
(1) When an order under section Ml has been read or explained under Section 1, 2 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.
(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases.
(3) 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 tranquility 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....
18. It will be seen that Sub-section (1) of this section requires a Magistrate to "proceed to inquire into the truth the information" against the person on whom order under Section 111 has been made and who is present before him. As to how he will proceed to ascertain the truth of the information is governed by Sub-section (2). But this much is clear that once a step has been taken by him to proceed to inquire into the truth of the information, the inquiry has commenced. The step taken may differ, depending upon the facts and circumstances of the Code, yet if the steps is to proceed to inquire into the truth of the information, the inquiry has commenced. Bearing this principle in mind, if the decisions cited on behalf of the petitioners are scrutinized, it will at once appear that each of them has only tried to determine the point when the proceeding to inquire into the truth of the information has commenced, depending upon the particular facts and circumstances of the case. All the decisions are, however, unanimous on the point that the point of commencement is when a step has been taken to enquire into the truth of the information. In one case (A.I.R. 1971 Supreme Court 2481) summoning of witnesses and obtaining sworn statements was from to be necessary to commence the proceeding. In other cases, 1957 patna 106 (supra) A.IR. 1952 Tr. Cochin 262 (supra) and 1974 B.BC.J. 460 (supra) appearance of the persons proceeded against and the Magistrate asking them as to what they have to say in respect of the substance of information, has been held to be the point of commencement of the inquiry. In another case, 1977 B.B.C.J., 37 (supra), the point of commencement of the inquiry has been held to be when the Magistrate applies his mind to the facts of the case in presence of the person proceeded against. I think, this case reiterates the same view as has been expressed by the earlier decisions of this court, but in a different language. I may observe that when Magistrate asks the persons proceeded against to state what they had to say in respect of the substance of information, obviously the Magistrate Was applying his mind to the case by taking such a step. Such a question cannot be a routine or mechanical question.
19. Summing up, therefore, the ratio laid in all the aforesaid decisions, whether of the Supreme Court or this court or of the Tranvacore Cochin High Court, is that the proceeding under Section 116(1) of the Code commences when the person proceeded against appears in court in pursuance of the notice served on him and the Magistrate proceeds to inquire into truth of the information. May be that in some cases witnesses may also require to be examined in relation to the truth of the information against the person proceeded, or may be that only when the person proceeded against is present before the Magistrate, either with his show cause or without his show cause and the Magistrate questions him, the inquiry commences. But in either case only after the order under Section 111 of the Code has been read or explained to the person concerned, who is present in the court, for his answer, the inquiry into the truth of the information is commenced by the Magistrate. It is another matter that the inquiry may continue on to elicit further materials, but so far as the commencement of the inquiry into the truth of the information is concerned, it commences when the Magistrate in presence of the person proceeded against takes step to know about the truth of the information.
20. On the facts of the instant case, the stage of Section 116(1) had reached when on service of the notice under Section 111 of the Code, the parties filed their show cause and the Magistrate heard them on it. Clearly therefore, the Magistrate's mind had started working towards finding out the truth of the information against the petitioners. The inquiry into the truth of the information as required under Section 116(1) of the Code must, therefore, be held to have commenced.
21. The question when arises as to whether the order under Section 116(3) of the Code was valid and proper. In this regard the contention that the inquiry had not commenced, is clearly an untengable proposition, but the other contention that there was no reason for the Magistrate to think that immediate measures were necessary against the petitioners for preventing the breach of the peace, has substance.
22. It cannot be gainsaid that for the purpose of putting a person, proceeded against, to the term of executing an ad interim bond, the Magistrate must consider arid be satisfied that the measures are necessary for prevention of breach of the peace. The Magistrate is required to record his reasons in writing for taking such a step. Obviously the provisions contained in Section 116(3) of the; Code postulates valid step, after inquiry into the truth of the information has confidence, for binding down a person by asking him to execute ad teatime bond. It cannot just be made on the basis of the allegations and counter allegations.
Now in the instant case, the order dated 11th August, 1977, which is the relevant order in this regard, does not at all indicate any basis as to why the learned Magistrate considered the petitioners to be the one who should be bound down by an ad interim bond of be executed by them. In the said order the learned Magistrate has dealt with the case and counter case of the rival parties and after doing so, has concluded that this court is satisfied and convinced that the second party is bent upon threatening the first party for taking over the possession of the cinema.
All the members of the second party are asked to execute an ad interim bond of Rs. 1,000/- each for maintaining peaces till the finalisation of the proceeding Under Section 107 Cr. P.C."
23. In my opinion, such an order is not a correct order in the spirit of the provisions of Section 116(3) of tJieCode. After all it concerns the liberty of certain persons which cannot be decided on the rival contentions of the parties themselves. There must be some thing more on the record to indicate as to which party was really the one who should be bound down so that peace may not be breached. The order dated 11th August, 1977 has therefore, to be set aside. It will be open to the learned Magistrate if he still considers it necessary to proceed under Section 116(3) of the Code, to ascertain further facts and then to take such emergency measures as are laid under Section 116(3) of the Code against such person or persons whom he thinks should be called upon to execute ad interim bond.
24. In the result, whereas the initiation of the proceeding under Section 107 of the Code by order dated 18th July, 1977 is held to be valid, the order dated 11th August, 1977 is quashed. With the aforesaid observations, the application is allowed in a part.