Bombay High Court
Smt. Christalin Costa And Others vs State Of Goa And Others on 7 July, 1992
Equivalent citations: 1993(1)BOMCR688, 1992CRILJ3608, 1993(2)MHLJ1409
ORDER
1. The petitioners have filed this application under Art. 227 of the Constitution challenging the institution of two Chapter Cases against them by the Sub-Divisional Magistrate, Panaji, at the instance of the Panaji Police Station wherein the petitioners were directed by the respondent No. 4 to execute bonds for keeping peace and good conduct under S. 107 of Cr.P.C. It appears that the proceedings were initiated by the police against the petitioners on a complaint lodged by the respondents Nos. 2 and 3 at Panaji Police Station. The petitioners and respondents Nos. 2 and 3 are neighbours and are living in Altinho, Panaji. However their relations are quite strained and there are constant quarrels on account of which police complaints and counter complaints have been lodged by both the parties. For the purpose of this petition the first complaint which is relevant is the one filed on 5-6-91 pursuant to which Chapter Case No. 112/91 was initiated by the Panaji Police Station. Accordingly the petitioners were made to appear before the respondent No. 4 and a bond was directed to be executed by them by the Magistrate under S. 107 of Cr.P.C. which bond they actually executed before him.
2. Thereafter one more complaint was lodged by the respondent No. 3 against the petitioners on 7-4-1992 consequent upon which fresh proceedings under S. 107 of Cr.P.C. were started against them. In this case also the petitioners were directed to execute a bond for maintaining peace. Both these orders are now the subject matter of this petition.
3. Shri Nadkarni, learned counsel for the petitioners has submitted before me that as far as the proceedings in Chapter Case No. 112/91 wherein they have executed a bond even assuming that the facts of the complaint lodged by the respondents Nos. 2 and 3 of the Police as well as in the report forwarded by the respondents Nos. 1 and 4 are correct the proceedings under S. 107 of Cr.P.C. are to be deemed as lapsed after a period of six months. Indeed the said proceedings having been instituted on 5-6-91 it is obvious that the period of six months had already passed and as per the law no such proceedings could be maintained by the Magistrate. The learned counsel contended that the petitioners have made an application to respondent No. 4 on 23-2-92 praying that the proceedings pending against them be closed, but in spite of that till the time of filing of this petition on 16-4-1992 no orders have been passed.
4. Shri Bhobe, learned Public Prosecutor, has fairly conceded that the position of law is quite clear and for all purposes proceedings instituted under S. 107 of Cr.P.C. could not subsist beyond the period of six months, unless that period was extended in special circumstances in terms of sub-section (6) of S. 116 of Cr.P.C. Shri Bhobe however urged that if the proceedings have lapsed there was no need for the Magistrate to say so because the lapsing of the proceedings should operate automatically in such cases.
5. It is difficult to accept the proposition advanced by Shri Bhobe in this respect and on the contrary the contention of Shri Nadkarni that the proceedings have lapsed after six months and the Magistrate was supposed to pass an order closing the proceedings on his application dated 23-2-92 appears to be sound. Sub-section (6) of S. 116 is expressly clear that the inquiry under the aforesaid section as to the truth of information of facts which have given rise to the said inquiry under S. 111 of Cr.P.C. shall be completed within a period of six months from the date of its commencement and if such inquiry is not so completed, the proceedings 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. In the instant case there is nothing on record to show that the Magistrate has in his wisdom thought it fit to extend the period of the inquiry which he was supposed to hold under S. 116 of Cr.P.C. on the complaint lodged by the Police before him consequent upon Chapter Case No. 112/91 was initiated against the petitioners on 5-6-1991. To be noted that this extention of time had to be directed by the Magistrate before the expiry of six months period and not after its expiry. Reliance was placed in this respect by Shri Nadkarni on the case of Nasiru v. State of Haryana 1978 Cri LJ 603 (Punj & Har) wherein it was observed that a plain reading of S. 116 goes to show that an inquiry after the expiry of a period of six months from the date of its commencement stands automatically terminated. Once the inquiry comes to an end, the Magistrate is not empowered to revive it. He, however, before termination of the inquiry, can order otherwise for special reasons to be recorded in writing. In the instant case it is seen that the Magistrate not only failed to keep the inquiry alive by extending its period for valid reasons but also neglected in his duty to close the said inquiry as well as the proceedings in spite of the fact that the petitioners had moved an application before him to this effect on 23-2-92. The submission of Shri Bhobe that no such orders appears to be necessary is to be rejected in the special circumstances of this case wherein the petitioners had approached the Magistrate to declare the proceedings as lapsed and closed.
6. It was further submitted by shri Nadkarni with regard to the second proceedings, namely, the one instituted in Chapter Case No. 98/92 that the order of the Magistrate directing the petitioners straightway to execute a bond for maintaining peace on the basis of the report of respondent No. 1 is bad and illegal. It was urged by the learned counsel that the Magistrate was required to necessarily apply his mind on the subject matter of the report independently on what the Police complaint had stated in the aforesaid report before initiating proceedings under S. 107 of Cr.P.C. For this purpose, Shri Nadkarni argued, the Magistrate should have conducted some preliminary inquiry and merely because the Police had placed some material before him the Magistrate was not required just on that material to initiate proceedings against the petitioners under S. 107 of Cr.P.C. It was also submitted by the learned counsel that after having initiated such proceedings the Magistrate was also supposed to give him copies of the orders and documents on the basis of which the order directing him to execute a bond was passed. The learned counsel submitted that no such documents or copies were supplied to the petitioners in respect of the complaint and the Chapter case initiated against them so far. Lastly the learned counsel has also made a grievance with regard to the very propriety of the order and the proceedings instituted by the Magistrate against the petitioners under S. 107 of Cr.P.C. The learned counsel urged that proceedings under S. 107 of Cr.P.C. were meant to curb public nuisance and breach of peace and not certainly aimed at setting scores between private individuals when there is no danger or probability of disturbing public tranquillity.
7. In my view all these submissions of Shri Nadkarni seem to be sound and deserve acceptance. As far as the last grievance is concerned a bare perusal of S. 107 of Cr.P.C. read with S. 111 shows that such proceedings are to be instituted only in respect of information received by the Magistrate if he is satisfied that there is any danger or likelihood of somebody committing breach of the peace and disturbing public tranquillity. Obviously when there are quarrels between two private individuals it appears that this situation is not contemplated by these legal provisions. Quarrels between individuals are not normally creating any problem of public order and at the most it may lead to a problem of law and order to be dealt with by the appropriate penal law. Proceedings under S. 107 are always dealing with preventive measures to be taken by the Magistrates in order to prevent any possibility of the breach of peace and disturbing the public tranquillity. In the case of Jayant D. Shah v. State of Maharashtra (1986) 1 Crimes 405 (Bombay) this Court has held that the provisions of Sections 107 to 110 cannot be used or exercised for satisfying private vendetta of a querulous person and the exercise of powers by the Magistrate under the aforesaid sections on the basis of incidents involving trivial quarrels without application of mind would amount to gross abuse of the process of law.
8. Similarly and with regard to the grievance made by Shri Nadkarni that no proceedings copies of orders and documents were supplied to him by the Magistrate, Shri Bhobe learned Public Prosecutor was not able to say anything contrary to what was asserted by the learned counsel for the petitioners. Being so I am satisfied that the grievance advanced in this respect by the petitioners appears to be genuine because once the proceedings were initiated the Magistrate was required to give to the petitioners whatever incriminating material had been relied by him to initiate proceedings against them under S. 107 of Cr.P.C. The principles of natural justice and fairness would demand such action of the part of the Magistrate and his failure in discharging this duty should not be lightly viewed in the special circumstances wherein the impugned order directing the petitioners to execute a bond was passed by him. Now and with regard to the challenge thrown by Shri Nadkarni against directing the petitioners to execute a bond without an opportunity having been given to them to have a say on the matter S. 107 of Cr.P.C. which deals with the security for keeping the peace requires that when a Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity etc. and the Magistrate is of the opinion that there is sufficient ground for proceedings, he may direct such person to show cause why he should not be ordered to execute a bond. In its turn S. 111 of Cr.P.C. refers to an order to be made and reads that when a Magistrate acting under S. 107, deems it necessary to require any person to show cause under such 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 in force and the number, character and class of sureties required. The harmonious construction of these two provisions clearly suggests that no order order requiring any person against whom proceedings under S. 107 of Cr.P.C. have been instituted can be passed by the Magistrate to execute a bond for maintaining peace unless a notice is issued to him to show cause as to why he should not be ordered to execute such a bond and this notice is to be given to him only after an order in writing is made by the Magistrate setting forth the substance of the information and among others details of the bond to be executed by the said person. It follows therefore that the Magistrate is expected to apply his mind on the material placed before him by the Police along with his report and on giving an opportunity to the opposite party to have a say on the question of executing a bond issue appropriate orders in this respect. The execution of the bond appears therefore to be an independent fact of the inquiry which the Magistrate is entitled to hold on the basis of the report forwarded to him by the Police. Such inquiry as to the truth of the information forwarded to him in the report by the Police is contemplated in S. 116 of Cr.P.C. It is true that its sub-section (3) provides that 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 direct the person against whom proceedings have been instituted under S. 107 and an order under S. 111 has been made to execute a bond. But this power of the Magistrate can be exercised by him only after the commencement and before the completion of the inquiry. We have already seen that such inquiry can start only after the Magistrate has made the order under S. 111 of Cr.P.C. while acting under S. 107 of Cr.P.C. Shri Bhobe has made a feeble attempt to justify the order of the Magistrate directing the petitioners to execute a bond by alleging that the Magistrate has held some preliminary inquiry on the matter by explaining to the petitioners the substance of the allegations or complaints made against them by the Police. In my view this circumstance cannot dispense the Magistrate of complying with the provisions of the law and a mere fact that the substance of the complaint was explained to the petitioners could not amount by any stretch of imagination to issue to the petitioners a notice to show cause as to why a bond should not be executed by them to maintain peace. Shri Bhobe has placed before me the proceedings held by the Magistrate and has taken me through the reasons given by him to pass the order directing the petitioners to execute a bond. On going through the roznama of the proceedings dated 13-4-92 it is seen that the Magistrate has recorded that on the parties having been produced before him by the Police he found that there were counter charges against each other. Thereafter because the parties of opponents namely Alex S. D'Costa and others who are the petitioners were seen arguing in his Court he had asked them to submit bond to keep peace pending the inquiry. These reasons adduced by the Magistrate clearly reveal non-application of mind on his part on the matter of executing a bond and negativate the contention of Shri Bhobe that some inquiry was held by the Magistrate before such order was passed. The said records clearly point out that the order was issued in a most punitive manner and merely because the petitioners namely Alex D'costa was seen arguing before him in the Court. Anyhow the law does not contemplate this type of bonds to be executed by parties appearing before him in proceedings under S. 107 of Cr.P.C. and on this count alone the order passed with this regard is to be held as wrong and without any basis either in facts or in law.
9. In the result the petition is bound to succeed and is hereby allowed as per clause (a) of the prayer clause. The proceedings in Chapter Case No. 112/91 are held as lapsed and terminated. However, with regard to Chapter Case No. 98/92 only the Order dated 13th April, 1992 is quashed and set aside. The Magistrate may therefore issue a fresh notice to the petitioners in the proceedings pending before him to show cause as to why a competent bond should not be executed to maintain peace and pass appropriate orders on the basis of his judicious satisfaction. Rule made absolute in the above terms with no order as to costs.
10. Petition allowed.