Gujarat High Court
Lalaji Fagna vs State Of Gujarat on 15 June, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
R/SCR.A/4367/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4367 of 2018
==========================================================
LALAJI FAGNA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR EE SAIYED(725) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 2.
Mr. L.B. DABHI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1.
==========================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 15/06/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Pursuant to the order dated 4.6.2018 passed by this court, the respondent No.2 Police Sub-Inspector, Khedbrahma Police Station, Sabarkantha has filed an affidavit in reply. The same is taken on record.
2. Mr. E.E. Saiyed, learned advocate for the petitioner has submitted that the seven persons mentioned in the petition had been wrongfully confined by the respondents for a period of ten days and it is only after rule was issued by this court on 23.5.2018, that they have been released.
3. Mr. L.B. Dabhi, learned Additional Public Prosecutor, invited attention of the court to the averments made in the Page 1 of 24 R/SCR.A/4367/2018 ORDER affidavit in reply filed on behalf of the respondent No.2. It was submitted that the respondent No.2 had received an application from Ajur Power Thirty Three Private Limited on 15.5.2018 stating that they have lawfully purchased land situated in village Manjipura from the original owner by way of sale deed and some people were coming from outside and illegally entering the land and wrongly interfering with the work and were falsely alleging that the land was of their ownership and were wrongly harassing them and were not letting them to do their work on this land and were illegally showing them bows and arrows and threatening to kill them and were damaging the property of the company and were harassing the employees and security personnel of the company and were saying that the land belongs to them and were threatening them not to enter the land. It was submitted that pursuant to the said application, with a view to avoid breach of peace, proceedings under sections 107 and 151 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') came to be initiated against seven persons, namely:
(i) Bhagabhai Faganabhai Ori,
(ii) Manabhai Khumabhai Ori,
(iii) Sardarbhai Virmabhai Ori,
(iv) Gulabbhai Dhulabhai Ori,
(v) Amrutbhai Maknabhai Ori,
(vi) Govindbhai Jethabhai Ori, and
(vii) Navjibhai Jagabhai Ori.
3.1 It was submitted that on 16.5.2018, the respondent No.2 had filed applications before the Executive Magistrate, Page 2 of 24 R/SCR.A/4367/2018 ORDER Khedbrahma for taking appropriate steps against the above seven persons under sections 107 and 151 of the Code, which came to be registered as Appeal Cases No.130 to 136 of 2018. It was submitted that all the seven persons, when they were produced before the Executive Magistrate at 3:00 PM on 17.5.2018, were directed to execute their own bonds/ bail bonds. However, the said seven persons had refused to offer bail bonds and hence, the Executive Magistrate passed an order to send them before the Jailor, Khedbrahma after drawing warrant under section 344 of the Code. It was submitted that prior to making the application to the Executive Magistrate, the respondent No.2 had made inquiry by recording statements of various persons and that upon finding that there was substance in the complaint, proceedings were initiated under sections 107 and 151 of the Code.
3.2 It was submitted that section 151 of the Code provides that a police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. It was submitted that in the light of the provisions of subsection (2) of section 151 of the Code, after the seven persons were arrested, they were produced before the Executive Magistrate. It was submitted that therefore, the respondent No.2 has duly followed all the provisions of law and that the action taken by him is in accordance with law. It was further submitted that in any case in the light of the fact that the petitioner and all the other persons have already been released on bail bonds nothing further is required to be done in the present petition.
Page 3 of 24R/SCR.A/4367/2018 ORDER
4. On the other hand Mr. E.E. Saiyed, learned advocate for the petitioner has submitted that the petitioner and six other persons have wrongfully been detained by the respondent No.2 and that appropriate directions be issued to the District Superintendent of Police, Sabarkantha to inquire into the entire episode and to initiate departmental proceedings against the respondent No.2.
5. Vide order dated 04.06.2018, the learned Additional Public Prosecutor was directed to file an affidavit of respondent No.2 as well as D.S.P., Sabarkantha on 15.06.2018. A perusal of the affidavit in reply filed on behalf of the respondent No.2, shows that the concerned officers have found out a novel way of filing an affidavit before this court, inasmuch as, while in the opening part of the affidavit it is stated that Mr. A.D. Parmar, Police Sub-Inspector, Khedbrahma Police Station, Sabarkantha, solemnly affirms and states on oath, the affidavit has been made by Saurabh Singh, Superintendent of Police, Sabarkantha District, solemnly stating on oath that the facts stated by Mr. A.D. Parmar, Police Sub-Inspector, Khedbrahama Police Station are correct and true to his knowledge and the allegations made in the petition are not correct. Thus, instead of filing two separate affidavits, one affidavit purportedly made by the respondent No.2 is affirmed by the Superintendent of Police. Consequently, an invalid affidavit has been filed as the deponent has not affirmed any affidavit.
6. From the documents annexed by the respondent No.2 along with his affidavit in reply, it is evident that an application was made by Ajur Power Thirty Three Private Limited on Page 4 of 24 R/SCR.A/4367/2018 ORDER 15.5.2018 stating the company has land for solar plant in village Manjipura. In this land some people were coming from outside and illegally entering the land and wrongly interfering with the work and were falsely alleging that the land was of their ownership and were wrongly harassing them and were not letting them to do their work on this land and were illegally showing them bows and arrows and threatening to kill them and were damaging the property of the company and were harassing the employees and security personnel of the company and were saying that the land belongs to them and were threatening them not to enter the land. In the application it is further stated that the company has legally purchased the land from the owner by way of registered sale deed and that they have sufficient evidence in that regard. It is accordingly requested that proper inquiry be made in the matter and that these persons should be removed from the land of the company.
7. Pursuant to the above application, the second respondent, on the same day recorded statements of a site in- charge of the company, and two security supervisors of the company and thereafter, on the very next day, that is, on 16.05.2018 lodged complaints before the Executive Magistrate, Khedbrahma for obtaining bond for keeping peace. On 16.05.2018, the second respondent also arrested the above referred seven persons in exercise of powers under section 151 of the Code and produced them before the Executive Magistrate on 17.05.2018 along with the complaint under section 107 and 151 of the Code.
8. The substance of the complaint is that the complainant had Page 5 of 24 R/SCR.A/4367/2018 ORDER received an application from Khedbrahma Police Station for investigation. Upon carrying out investigation it is found that a solar plant of Azur Power 30 Pvt. Ltd is situated in Manjipura village. Certain persons from outside had illegally entered the land and as there was encroachment and interference in the solar plant by unauthorized persons, upon making inquiry in that regard certain persons were found to be unauthorizedly sitting at the solar plant and upon inquiring the opponents in this case were saying that the land was theirs and were not producing any fresh evidence due to which all these persons having been unauthorizedly in the land of the solar plant and were telling the security personnel that the land was theirs and by saying so were harassing them, with a view to see that the said opponents do not cause any hindrance to the solar plant as well as there being a possibility of breach of peace and damage to the solar plant, the opponents in this case were arrested under section 151 Cr.P.C. at 17:00 hours on 16.5.2018 and to ensure that the opponents in this case do not unauthorizedly enter the land and do not cause breach of peace, the court may impose the maximum bail amount as may be deemed proper and obtain bail bonds for a long period. The complainant has cited himself as well as the applicant Ayugbhai Hajibhai Memon as witnesses. In all seven separate complaints have been made against the above seven persons.
9. When they were produced before the Executive Magistrate, Khedbrahma on 17.5.2018, the Executive Magistrate has passed an order, the relevant part of which, as translated into English, reads thus:
"Resolution:-
The short facts of the case are that the original Page 6 of 24 R/SCR.A/4367/2018 ORDER complainant in this case had made an application against the opponents at the above police station in respect of breach of peace. Upon such application being submitted, the complainant in this case had carried out inquiry and after registering a complaint against the respondents under sections 107 and 151 of the Code of Criminal Procedure and upon producing them on 17.5.2018, the present case has arisen.
Along with the complaint, the opponents have also been produced. But as the opponents are not ready to submit personal bonds or bail bonds, after passing an order under 111 of the Code of Criminal Procedure and issuing notice, the case is taken up for orders.
Order In view of the above, the case has been registered against the respondents on 19.5.2018 under sections 107 and 151 of the Code, wherein the respondents have not agreed to sign the notice or to submit personal bonds or bail bonds and hence, after issuing warrant under section 344, they are sent to the custody of the Jailor, Khedbrahma."
10. It appears that on 18.5.2018 another application was received by the respondent No.2, pursuant to which three other persons were also arrested under section 151 of the Code and produced before the Executive Magistrate on the same day together with three similar complaints. Pursuant to the said complaints the Executive Magistrate passed a similar order dated 19.5.2018.
Page 7 of 24R/SCR.A/4367/2018 ORDER
11. Thereafter the petitioner presented this petition before this court on 22.5.2018 and the matter came up for hearing on 23.05.2018 whereupon this court issued rule returnable on 04.06.2018 and called upon the learned Additional Public Prosecutor to inquire in respect of the contention of illegal detention and the confinement of persons shown in paragraph 11 of the petition.
12. By an order dated 28.05.2018 the Executive Magistrate and Mamlatdar, Khedbrahma ordered that the ten persons be released as bail bonds had been executed.
13. To examine the validity of the action of the respondents, it would be necessary to refer to the following provisions of the Code which are relevant for the present purpose:
"107. Security for keeping the peace in other cases.-- (1) 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 tranquillity 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.Page 8 of 24
R/SCR.A/4367/2018 ORDER (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 or to do any wrongful act as aforesaid beyond such jurisdiction.
111. Order to be made.-- When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, 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 (if any) required.
112. Procedure in respect of person present in Court.-- 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.
116. Inquiry as to truth of information.-- (1) 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 Page 9 of 24 R/SCR.A/4367/2018 ORDER 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 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:
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.Page 10 of 24
R/SCR.A/4367/2018 ORDER (4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.
(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just.
(6) The inquiry under this section 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:
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.
(7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on the 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.
117. Order to give security.-- If, upon such inquiry, it is proved that it is necessary for keeping the peace or Page 11 of 24 R/SCR.A/4367/2018 ORDER maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly:
Provided that--
(a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under Section 111;
(b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;
(c) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.
151. Arrest to prevent the commission of cognizable offences.-- (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force."
Page 12 of 24R/SCR.A/4367/2018 ORDER
14. Insofar as the scope of section 151 of the Code is concerned, the Supreme Court in Ahmed Noormohmed Bhatti v. State of Gujarat, (2005) 3 SCC 647, has held thus:
"4. Section 151 appears under Chapter XI of the Code of Criminal Procedure which relates to preventive action of the police. Sub-section (1) thereof empowers a police officer to arrest, without orders from a Magistrate and without a warrant, a person designing to commit any cognizable offence. The section further requires that such an arrest should be made only if it appears to such police officer that the commission of the offence cannot be otherwise prevented. Sub-section (2) of Section 151 of the Code of Criminal Procedure places a limitation on the period of detention by providing that no person arrested under sub-section (1) shall be detained in custody for a period exceeding 24 hours from the time of his arrest, unless his further detention is required or authorised under any other provisions of this Code or any other law for the time being in force.
5. A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be Page 13 of 24 R/SCR.A/4367/2018 ORDER fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The section, therefore, expressly lays down the requirements for the exercise of the power to arrest without an order from a Magistrate and without a warrant. If these conditions are not fulfilled and a person is arrested under Section 151 of the Code of Criminal Procedure, the arresting authority may be exposed to proceedings under the law. Sub-section (2) lays down the rule that normally a person so arrested shall be detained in custody not for a period exceeding 24 hours. It, therefore, follows that in the absence of anything else, on expiry of 24 hours, he must be released. The release, however, is not insisted upon only when his further detention is required or authorised under any other provision of the Code or of any other law for the time being in force. It, therefore, follows that if before the expiry of 24 hours of detention it is found that the person concerned is required to be detained under any other provision of the Code of Criminal Procedure, or of any other law for the time being in force, he may not be released and his detention may continue under such law or such provision of the Code. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him."Page 14 of 24
R/SCR.A/4367/2018 ORDER
15. Thus, the Supreme Court in the above decision has held that a police officer may arrest a person without an order from a Magistrate and without a warrant under section 151 of the Code only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. On a perusal of the averments made in the affidavit-in-reply filed on behalf of the second respondent, there in nothing whatsoever to show that any such satisfaction has been recorded by him prior to arresting the above referred seven persons. Furthermore if the detention is under section 151 of the Code, the person concerned cannot be detained beyond 24 hours unless his further detention is required or authorised under any other provision of the Code or of any other law for the time being in force. Thus, assuming for the sake of argument that the powers under section 151 of the Code have been validly exercised, the question that arises is whether the detention of the above referred seven persons beyond 24 hours is valid. As noted hereinabove, such person who has been detained under section 151 of the Code can be further detained if required or authorised under any other provision of the Code or any other law for the time being in force. Insofar as this requirement is concerned, it appears to be the case of the respondents that proceedings under section 107 of the Code having been initiated and the Executive Magistrate having ordered the said persons to furnish personal bonds/oblique bail bonds, which they had refused to execute, they were sent to the custody of the Jailor under by issuing warrant section 344 of the Code.Page 15 of 24
R/SCR.A/4367/2018 ORDER
16. Insofar as the proceedings under section 107 of the Code are concerned, it may be germane to refer to the decision of the Supreme Court in Madhu Limaye v. Ved Murti, (1970) 3 SCC 739, the relevant part whereof has been extracted hereunder:
"4. The petitioners were arrested by the Police without a warrant under Section 151 Criminal Procedure Code for purposes of taking them before a Magistrate to be bound over under Section 107 of the Code of Criminal Procedure. The arrest of the petitioners being one for action under Section 107 of the Code, the provisions of Chapter VIII applied. The Special Bench has analysed those provisions critically and we need refer to them only briefly here. The first sub-section of the section arms certain Magistrates of specified classes with the power to require a person; who is likely to commit a breach of the peace or to disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, to execute a bond and furnish security for keeping the peace. The sub-section however lays down that the Magistrate shall proceed "In the manner hereinafter provided". The Chapter then contains elaborate provisions for the procedure which the Magistrate must follow. Since the liberty of the person is involved, not because of anything he has done but because of the likelihood of breach of the peace or disturbance of the public tranquillity by reason of some action on his part, the provisions must obviously be strictly followed. Since the action is taken on the mere opinion of the Magistrate, the provisions of the Chapter naturally ensure that no case of harassment arises.
5. The first requirement is that the Magistrate must pass an order in writing setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be in force and the number, character and class of sureties (if any) required under Section 112. This order maybe passed in the presence of the person to be bound over and even in his absence. This is clear from the provisions of the two sections that follow. Section 113 deals with the procedure when the person is Page 16 of 24 R/SCR.A/4367/2018 ORDER present in the Court. Then the Magistrate must read over the order to the person and if he so desires, the substance of it must be explained to him. When the person is not present in Court, the next section applies. The Magistrate shall then issue a summons to him to appear and if he is in custody, the Magistrate shall issue a warrant to the person who has his custody to produce him before the Court. If there is need of immediate arrest of the person, the Magistrate on the report of the Police Officer or upon other information (the substance of which report or information is to be recorded in writing by the Magistrate) may issue a warrant for the arrest of the person. This action can only be taken if there is reason to fear that a breach of the peace cannot be prevented except by the arrest of the person (Section 114) whenever a summons or a warrant is issued under Section 114, a copy of the order made under Section 112 must be sent and delivered to the person (Section 115). The Magistrate is empowered to dispense with the personal appearance of the person and allow him to appear by a pleader (Section 116).
6. In all cases where the person is present in Court or is brought there by a warrant in the two cases mentioned or appears on summons and the order under Section 112 is read over to him or sent to him with the warrant, the Magistrate obtains jurisdiction over the person. He is then required to proceed under Section 117. This section is divided into several sub-sections but we are concerned only with the first three sub-sections. Under the first sub- section, the Magistrate shall proceed to enquire into the truth of the information upon which he has so far acted and take such further evidence as may appear necessary. Under the second sub-section the enquiry is a trial and the procedure applicable to the trial and recording of evidence in summons cases is enjoined. Under the third sub-section, a power has been conferred on the Magistrate to ask for a bond with or without sureties to keep the peace and be of good behaviour pending the completion of the enquiry. This power is used if the Magistrate considers that immediate measures are necessary for prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety. He does so far reasons to be recorded in writing and if the person does not execute such bond, the Magistrate is empowered to detain him in custody till the bond is executed or the enquiry is concluded. The rest of Page 17 of 24 R/SCR.A/4367/2018 ORDER the provisions of the section as also of the Chapter need not be mentioned, for the case never went beyond this stage when the petitioner became free by reasons of the expiry of the remand order.
8. Between these two reports came the arrest by the police under Section 151 of Criminal Procedure Code, without a warrant from the Magistrate. In fact no proceedings under Section 107 were drawn up before the arrest of the petitioners. They were arrested first and then taken to the Court by the Police with a view to being bound over. When the petitioners arrived in Court, the Magistrate drew up the Order under Section 112, and read it over to the petitioners. They were asked to sign the Order which they refused to do and Madhu Limaye and Ram Adhar Giri made a complaint. They were not statements on the merits of the case but a minute of what had happened to them after their arrival at Varanasi. The notice under Section 112 which was given to them stated briefly that a report was received from the Police station Cantonment, Varanasi that the two petitioners were acting in such a manner "which gives an impression that there is an apprehension of danger to the life and property of general public, causing damage to public property and to occupy it unlawfully also". That there was "an apprehension to breach of the peace on account of their activities" and that there were sufficient grounds to take action. After the above notice was read over and was refused to be signed by the petitioners, the Magistrate passed an order adjourning the case to which we shall refer presently.
11. It will be noticed that before the Magistrate took action to call for an interim bond, he did not make any efforts to enquire into the truth of the information as is required by Section 117(3) of the Code. He only saw the police report and was satisfied from it, without even questioning the Sub-Inspector. He did question him with regard to Narender Shastri who is described in the Order as OP No. 3 but not others. xxxxxxx
14. It appears therefore that the Magistrate used the powers under Section 117(3) without commencing to enquire into the truth of the information. Now no sworn statement of any kind was obtained by him and he Page 18 of 24 R/SCR.A/4367/2018 ORDER adjourned the cases for the examination of the petitioners without summoning the witnesses in support of the information. He, however, asked the petitioners to furnish an interim bond or go to Jail.
15. It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry' postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear no body and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan or Ved Murti Bhatt or any of the witnesses named in the Challan. Nothing of this kind was done. Therefore the proceedings for asking for an interim bond were completely illegal.
The petitioners were brought under the process of Chapter VIII -- They were read over an Order under Section 112 and if interim bonds were required from them the Magistrate ought to have entered upon the enquiry and satisfied himself, at least, prima facie, about the truth of the information in relation to the alleged facts. Without making any enquiry, neither could the Magistrate order the petitioners to be detained in custody nor require them to execute a bond with or without surety.
It is quite clear that the Magistrate was too much in hurry. He did not read the law to inform himself what he was to do. Having the petitioners before him and having read to them the order under Section 112 it was his duty either to release them unconditionally or to ask them to give an interim bond for good conduct but only after he has started inquiring into the truth of the information. It was for this reason that we held that the Magistrate did not act according to the law and his action after August 9, 1970 in detaining the petitioners in custody was illegal. As the petitioners had already become free by reason of the remand having expired, we declare them to be free."Page 19 of 24
R/SCR.A/4367/2018 ORDER
17. The above decision of the Supreme Court was rendered in the context of the provisions of the Code of Criminal Procedure, 1898. The corresponding provision for section 117 of the Code of 1898 is section 116 of the 1973 Code and the corresponding provision for section 112 of the 1898 Code is section 111 of the 1973 Code. On a plain reading of section 116 of the 1973 Code, it is evident that after an order under section 111 has been read over or explained under section 111 to a person in court or when such person appears or is brought before a Magistrate, the Magistrate is required to proceed to inquire into the truth of information upon which action has been taken and to take such further evidence as may appear necessary. Sub-section (2) of section 116 provides that such inquiry shall be made, as nearly as may be practicable, in the manner prescribed thereafter for conducting trial and recording evidence in summons cases. Sub-section (3) of section 116 provides that 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 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.
18. On a perusal of the order dated 17.5.2018 passed by the Executive Magistrate, it is apparent that the Executive Page 20 of 24 R/SCR.A/4367/2018 ORDER Magistrate himself has not made any inquiry as contemplated under section 116 of the Code and has merely referred to some inquiry made by the complainant. Thereafter, merely because the above referred seven persons who were brought before the Magistrate had not agreed to sign the notice or submit personal bonds or bail bonds, they were directed to be sent to the custody of the Jailor, Khedbrahma after issuing warrants under section 344. As held by the Supreme Court in the case of Madhu Limaye v. Ved Murli (supra) as well as on a plain reading of the provisions of section 116 of the Code, the power conferred upon the Magistrate to ask for a bond with or without sureties to keep the peace and be of good behaviour pending the completion of the inquiry, is required to be exercised only if the Magistrate considers immediate measures are necessary for prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety. In doing so, he has to record reasons in writing and if the person does not execute such bond, the Magistrate is empowered to detain him in custody till the bond is executed or the inquiry is concluded.
19. In the present case, before the Executive Magistrate took action to call for an interim bond, he did not make any efforts to inquire into the truth of the information as required under section 116 of the Code. He only saw the police report and was satisfied with it without making any further inquiry. Prima facie, it, therefore, appears that the Executive Magistrate has exercised powers under sub-section (3) of section 116 of the code without commencing to inquire into the truth of the information. Merely on the ground that the seven persons produced before him were not ready to submit personal bonds Page 21 of 24 R/SCR.A/4367/2018 ORDER or bail bonds, he has passed the order for issuing warrant under section 344 and has sent them to the custody of the Jailor, Khedbrahma.
20. A perusal of the provisions of section 344 of the Code shows that the same provide for summary procedure for trial for giving false evidence and sub-section (1) of section 344 of the Code provides that if, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
21. Evidently, therefore, section 344 of the Code applies to summary procedure for trial for giving false evidence, which is in the nature of a judicial proceeding and does not apply to any proceedings before any Executive Magistrate. Therefore, issuance of warrant under section 344 of the Code and sending the petitioner and others to the custody of the Jailor, Khedbrahma by the Executive Magistrate appears to be Page 22 of 24 R/SCR.A/4367/2018 ORDER without any authority of law. Moreover, considering the fact that the petitioner and others were produced before the Executive Magistrate on 17.5.2018 along with the application, prima facie, it appears that no procedure as contemplated under section 116 of the Code has been followed by the Executive Magistrate. Moreover, the order under section 111of the Code which finds reference in the order dated 17.5.2018, has also not been produced for perusal of the court.
22. The learned Additional Public Prosecutor has produced the original proceedings and statements recorded by the respondent No.2 for the perusal of this court, wherein there are statements of the above seven persons are stated to have been recorded after they came to be arrested, which are in the nature of inculpatory statements. However, upon showing the said statements to the said persons who are personally present before the court, they have denied having made any such statements. Out of the statements only two bear thumb impressions, which also have been denied by them.
23. Under the circumstances, with a view to ascertain the correct position and to examine the validity of the detention of the above referred seven persons, issue NOTICE returnable on 28.6.2018 to the Executive Magistrate, Khedbrahma to explain under what circumstances order was passed for issuance of warrants under section 344 of the Code against above referred seven persons and sending them to the custody of the Jailor, Khedbrahma.
24. The Collector, Sabarkantha shall forthwith take custody of the record of the proceedings of Police Chapter Case No.130 to Page 23 of 24 R/SCR.A/4367/2018 ORDER 136 of 2018 from the Executive Magistrate and Mamlatdar Khedbrahma and seal the same and produce the same for the perusal of this court on 28.06.2018.
25. The Registry to forthwith communicate this order to the Executive Magistrate, Khedbrahma and to the Collector, Sabarkantha.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) karim Page 24 of 24