Orissa High Court
Dibakar Naik vs Puspalata Patel And Anr. on 25 February, 1997
Equivalent citations: 1997(I)OLR579
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1.In this application under Section 482 of the Code of Criminal Procedure (in short, 'the Code') the petitioner has prayed for setting asida the order dated 4-4-1994 and for quashing of the entire proceeding in Misc. Criminal Case, No. 3/94 pending before the District Magistrate, Siindargarh.
2. The facts which are essential to be stated for disposal of the present application are as follows :
The District Magistrate, Sundargarh initiated Misc. Criminal Case No. 3/94 against the petitioner on the basis of credible information furnished to him. As breach of peace was apprehended the petitioner was asked to show cause under Section 107/111 of the Code to show cause why he should not be required to execute a bond for Rs. 20,000/-with two sureties from respectable local persons for Rs. 10,000/- each to keep peace for a period of six months.¦: While initiating the said proceeding in the same order dated 4-4-1994 the District Magistrate directed arrest of the petitioner under Section 113 of the Code and accor-' ¦ dingly issued warrant of arrest, The petitioner was produced before him on 6-4-1994. An order was passed on that day remanding him to jail custody till 16-4-1994. On 21-41.934 the Distict Magistrate passed an order indicating that he was not: satisfied with regard to the solvency of the sureties produced by the petitioner and directed him to continue in jail custody till 23-4-1994, On 23-4-94 it was contended before the' District Magostrate that as no inquiry had commanced execution of the-interim bond should not be directed and farther the warrant should not ¦ have been issued at the first instance and the petitioner should not have been directed to languish in jail custody, Tho learned District .Magistrate trate dealt with the contentions and camo to hold that the order issuing ¦ warrant was iustified in view of the provisions enjoied under Sec, 113 of Code. With regard to execution of the interim bond he also observed that such a direction is called for and accordingly ho directed under Sec.. 11 3 (3) of the Code directing the petitioner to execute a bond of Rs. 20,000/- with two sureties of Rs.-10,000/- each by local respectable persons, As the petitioner expressed his inability to execute the bond he was remanded to jail custody til! inquiry was concluded. The matter stood adjourned to 7-5-1994,, On 7-5-1994 a prayer was made to release the petitioner on bail, but the same was refused since the petitioner had refused to execute the interim bond An application for bail was filed before the learned Sessions Judge in Criminal Misc. Case No. 123/94, but the same was rejected as not pressed. Eventually on 4-6-1994 the interim bond was executed and the petitioner was released from the jail custody.
3. The learned counsel for the petitioner has contended that the power exercised by the learned District Magistrate under Section 113 of the Code amounts to abuse of power in the factual backdrop of the presenf case and secondly, the direction to execute interim bond before commencement of inquiry is erroneous in view of the provisions enjoined under Section 116(3) of the Code. It is canvassed that as the petitioner has suffered enough there is no justification for continuance of the proceeding.
Mr. D. P. Das for the opp. party No. 1 and Mr. S. C. Satpathy, the learned Add!. Standing Counsel appearing for the State submitted in support of the impugned order. Their contention is that as the petitioner had already executed the interim bond there should be direction for final disposal of the main case.
4. To appreciate the rival contentions of the parties i have perused the order sheet and the reports which are in the LCR in great detail. I find the proceeding was initiated on the basis of an inquiry report submitted by the OIC (Judl.), Collectorate., Sundargarh on 7-3-1994 which was sent by him after conducting inquiry pursuant to the direction given on the grievance petition of Smt Puspalata Pete!, opp, party No 1 herein. Notice to show cause was issued to explain why the petitioner should not be required to execute a bond and simultan. eously an order purported to be one under Sec, 113 of tho Code was passed. The feamed District Magistrate recorded as follows :
"Further, In the circumstances of the case where the first party is the poor helpless orphan lady and the second party namely Dibakar Naik is a bad charactered parson who happens to be the father-in-!jw of the first party and that who had. beaten her in past and now that he has threatened to kill the first party, J am satisfied that this breach of peace cannot be prevented otherwise than by Immediate arrest of thy second parity. Hence, under the powers conferred on me under Section 113, Cr PC, I hereby issue warrant of arrest against the second party namely Dibakar Naik. OIC, Bhasma P.S, is hereby directed to serve a copy of the order made under Section 111, Cr PC to the second party Dibakar Naik."
When it was discovered that Dibakar Naik was staying under Lephri-pada Police Station. the Magistrate issued warrant for execution by the IIC of Lephripada P. S.
5. The question that falls for consideration is whether the District Magistrate, in the facts and circumstances of the case, was justified in exercising his power under Section 113 of the Code. Section 113 reads as follows :
"113. Summons or warrant in case of person not so present-If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custode he is to bring him before the Court:
Provided that whenever it appears to such Magistrate, upon the report of a Police Officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such ' breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest."
On a proper reading of the aforesaid provision it is clear as day that before taking steps for arrest the Magistrate must have reasons to fear the commission of breach of the peace and it must appear to him that such breach of peace cannot be prevented otherwise than by immediate arrest of such person. It is incumbent upon the Magistrate to record an order in writing showing satisfaction for the steps taken under the proviso to Section 113 of the Code. On a perusal of the order I find that the learned Magistrate has stated the language from the proviso to justify his order, but the records have a different s.ory to tell. As it appears, the first party Puspalata had made a grievance before the District Magistrate, Sundargarh who had called for a report from the OIC (JUdl.) Collectorate. The report indicates that Puspalata was married to Pradeep Naik who is employed as a teacher jn U. P. School, Mahikani. Report shows that ill-treatment was meted to said Puspalata and she had left her father-in-law's house. It is worthwhile to quote the relevant portion of the report :
"Smt. Puspalata Patel told that she was married in the year 1935 and the daughter was born in 1986. She has stayed with her husband for about four and half years. She told that her father-in-law had once tried to rape her and misbehaved with her. She was being beaten by her in-laws. They also came to her village threatening to kill her. That is why she does not want to go to her in-law's house. Her daughter who was with her for one year was forcibly taken away by her father-in-law. She told that she had never-misbehaved with her in-laws. She claimed Rs. 40,000/- as a lump sum maintenance charges if her husband is not willing to take her. She is afraid of going to her in-law's house due to extreme misbehaviour and threatening by her in-laws. They had also claimed dowry from her."
The report also refers to the statement of the father-ln-law which is as follows:
"The father, Sri Dibakar Naik stated that he is ready to give whatever money and land his daughter-in-law would want. His statement reflected that he has deep influence on his son who is of half-mind and he is instigating his son against the daughter-in-law."
From the report I also notice that the father-in-law's village is Jhargaon village whereas the daughter-in-law has been staying in village 8i!eigarh and she has been staying there for some years after leaving her father-in-law's house.
6. From the aforesaid report it is quite unfortunate that the District Magistrate inferred that there was such a breach of peace which required immediate arrest of the second party and the same could not be otherwise prevented. The powers conferred on the authority under the proviso to Section 113 has to be exercised on rare occasion. depending upon the gravity of the situation. But in the present case the fact situation did not give rise to such a situation, and I am of the considered view that the order passed by the, District Magistrate is absolutely perverse as far as it relates to issuance of warrant under Section 113 of the Code.
7. The next submission of the' learned counsel for the petitioner relates to direction for execution of the interim bond. i am not going to deal with the aspect whether the learned Magistrate was justified in refusing to accept the sureties by his order dated 21-4-1994. But as far as the execution of interim bond is concerned Section 116(3) of the Code confers jurisdiction on the Magistrate for giving direction to execute interim bund. Sub-sec. (3) of Section 116 is relevant for the,purpose which reads as follows :
"116. inquiry as to truth of information :
(1) xxx xxx (2) xxx xxx
(3) After the commencenment, and before the completion, of the inquiry under Sub- Section (1), the Magistrate, it he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the cemmission 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:
Provided that:
(a) no person against whom proceedings are not being taken under Section 108, Section 109, or Section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under Section 111."
The object of the aforesaid sub-section is to confer power on the Magistrate to direct a person against whoman order under Section 111 has been made to execute a bond for keeping the peace or maintaining good behaviour till finalisation of the inquiry. Unless inquiry was commenced as contemplated under Section 116(1) a direction fur execution of interim bond cannot be passed and the same would be contrary to the conscience of Section 116 of the Code. in this regard I may refer to the decision in the case of Sona Khan and Ors. v. State, 50 (1880) CLT 245 (FB) wherein it has been ruled as follows :
"ln view of.the ratio in Madhu Limaye's case and the language of the new Code, there is no scope for the proposition that without commencement of inquiry, an order for interim bond can be made. inquiry does not commence as soon as - the delinquent appears and the notice under Section 112 of the Code of Criminal Procedure is read out to him. The Supreme Court has emphasised on the position that bare allegations cannot form the foundation of the order for a bond and failing furnishing of it detention of the delinquent. The.allegations have got to be tested. It may be that in a particular case, oral evidence may not be necessary to test the truth or otherwise of the allegations. Affidavits may be enough. There may be documentary evidence which might substitute oral evidence which necessitates examination of witness. Parties may agree that the allegations are true and, therefore, there may not be any necessity' of looking for evidence. Situations arising in daily life cannot be catalogued and discretion must be left to the ' Magistrate to deal with particular situation as may arise before him in different cases, but the mandate of the law is that the inquiry must commence and the Magistrate must proceed to ascertain the truth of the allegations by application of his judicial mind and look for materials which would substitute allegations , into facts. The inquiry contemplated is an acceptable legal process,by,,which allegations can be converted into facts. ,What that process would.be should be left, to the discretion-of ...the Magistrate with,reference to the facts of each case, but must adopt an acceptable judicial method for testing the allegations and recording findings of fact with reference to the,acceptability or otherwise of such allegations."
Applying the aforesaid principle of law 1 am of the considered opinion that in the instant case there has been no semblance of inquiry as contemplated under Section 111(1) of the Code. In absence of this the direction to execute interim bond was absolutely unjustified.
8. As has been indicated earlier the interim bond was executed in June, 1994. -. As enjoined under Section 116(6) the final inquiry is to be completed within six months. On perusal of the records I am of the considared view that the petitioner has -suffered enough as he remained in custody for almost two months and there is no justification for continuance of this proceeding. Accordingly, in exercise of the inherent power of this Court I quash the criminal proceeding forming the subject-matter of Misc. Criminal Case No. 3/94 pending in the Court of District Magistrate. Sundargarh.
9. Resultantly the Criminal Misc. Case is allowed: