Bombay High Court
Jaywant Gabaji Tambe vs The State Of Maharashtra on 23 September, 2008
Author: S.S. Shinde
Bench: S.S. Shinde
1
//REPORTABLE//
CRIMINAL WRIT PETITION NO.166 OF 1999.
Date of decision : 23rd SEPTEMBER, 2008.
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.S. SHINDE.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? } Yes.
2. To be referred to the Reporter or not? } Yes
3. Whether Their Lordships wish to see
4.
the fair copy of the judgment?
Whether this case involves a substantial
}
}
No.
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? } No.
5. Whether it is to be circulated to the }
Civil Judges? } No.
6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? } No.
[Prakash Kadam]
Private Secretary to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO.166 OF 1999.
Jaywant Gabaji Tambe,
age 53 years, occu. Government
Service, r/o Chinchpur,
Tal. Sangamner, Dist. Ahmednagar. .... PETITIONER.
VERSUS
1. The State of Maharashtra.
2. Shri Ashok Patil,
Executive Magistrate,
Sangamner, Tal. Sangamner,
Dist. Ahmednagar.
3. Shri P.T. Karhad,
Police Head Constable,
Sangamner Taluka Police
Station, Sangamner,
Dist. Ahmednagar. .... RESPONDENTS.
RESPONDENTS
...
Shri R.K. Adsure, Advocate for Petitioner (Absent).
Mrs. S.S. Autade, A.P.P. for R.Nos.1 and 2.
Shri K.C. Sant, Advocate for R.No.3.
...
CORAM: S.S. SHINDE, JJ.
DATE : 23rd SEPTEMBER, 2008.
Date of reserving
the Judgment. : 09.07.2008.
Date of pronouncing
the Judgment. : 23.09.2008.
JUDGMENT:
1. The present petition is filed by the petitioner challenging the order passed by the ::: Downloaded on - 09/06/2013 13:53:47 ::: 2 Executive Magistrate i.e. Tahsildar, Sangamner in Chapter Case No.120/99 under Section 107 of Cr.P.C. and Chapter Case No.21/99 under Section 110 of Cr.P.C.
2. The brief facts narrated in the petition are as under:
. It is the case of the petitioner that part of Gat No.458 of village Chinchpur is in possession of the petitioner since last more than 50 years and his Gram Panchayat House No.251 is standing on the said land. One Shri Dagadu Patilba Tambe and his sons are not concerned with the property, in any manner, yet they were disturbing peaceful possession of the petitioner.
Hence, the petitioner filed declaratory and injunction suit in civil Court against said Dagadu Patilba Tambe in which interim order of status quo was passed in favour of the petitioner. Shri Dagadu Tambe was having personal grudge against the petitioner. It is the case of the petitioner that said Dagadu tried to harass the petitioner and his family members. Hence, on 14th March, 1999 the petitioner's son namely Raju had given complaint to respondent no.3 but, no action was ::: Downloaded on - 09/06/2013 13:53:47 ::: 3 taken by the respondent no.3 on said complaint.
The said Dagadu Patilba Tambe gave false complaint against the petitioner and his two sons namely Vijay and Raju and subsequently, added name of 3rd son of the petitioner i.e. Sanjay in the said complaint. The police registered N.C. against the petitioner and his sons without ascertaining the truth and by registering said N.C. the report was forwarded under Section 107 of Cr.P.C. by respondent no.3 to Respondent no.2 on 15.3.1999 for taking action against the petitioner and his sons.
It is further case of the petitioner that on the very same day the petitioner and his three sons were directed to execute P.R. bonds and produce solvent surety of Rs.25,000/- each.
3. It is further case of the petitioner that said Dagadu Tambe and his family members were harassing the petitioner and his family and, therefore, Sanjay Tambe, son of the petitioner was constrained to give complaint against said Dagadu and his sons in Sangamner Taluka Police Station on 19.3.1999. Initially, police persons were reluctant to accept the complaint of the son of the petitioner. However, subsequently Chapter Case No.178/99 u/s 107 of Cr.P.C. was registered ::: Downloaded on - 09/06/2013 13:53:48 ::: 4 against said Dagadu Tambe and his sons, and only surety bond of Rs.10,000/- was asked from them.
It is the case of the petitioner that again on 17.3.1999 said Dagadu Tambe filed another complaint against the petitioner contending therein that the petitioner had threatened him that "today you will be murdered and for that we have prepared well". On these vague allegations respondent no.3 forwarded report after lapse of 13 days i.e. on 30.3.1999 under Section 110(e), (g) of Cr.P.C. before the respondent no.2 and accordingly, Chapter Case No.21/99 was registered against the petitioner.
4. In the said Chapter Case No.21/99 the petitioner was arrested for by respondent no.3 under the powers u/s 41(2) of Cr.P.C. and was detained for three hours and subsequently he was released. It is further case of the petitioner that though the petitioner is a Government servant working as Office Superintendent in Panchayat Samiti, Sangamner, yet ye was illegally arrested without prior permission of the Block Development Officer and he was illegally prosecuted without prior permission of the higher authorities.
::: Downloaded on - 09/06/2013 13:53:48 ::: 55. It is further case of the petitioner that in the said Chapter case it was incumbent on the respondents to ascertain the truth and then only to proceed further but, without doing so and without following procedure as required by Chapter VIII of Cr.P.C., immediately on the next day, the respondent no.2 passed an order on the said Chapter Case asking the petitioner to produce cash surety of Rs.25,000/- and solvent surety of Rs.50,000/- and that too of a Government Servant by way of interim order u/s 116(3) of Cr.P.C. It is further case of the petitioner that he arranged for money and gave cash surety of Rs.25,000/- on 9.4.1999 and solvent surety of Rs.50,000/- of Government Servant namely Kusum Madhav Ghule on 9.4.1999.
. It is case of the petitioner that provisions of section 110(e) and (g) of Cr.P.C.
have been wrongly applied as the petitioner is not a habitual offender and more so, there was no danger of his being at large without security hazardous to community as he is a Government servant and there was not even a single offence registered against the petitioner.
::: Downloaded on - 09/06/2013 13:53:48 ::: 66. It is further case of the petitioner that for passing interim order under Section 116(3) of Cr.P.C., it was necessary on the part of respondent no.2 to issue show cause notice u/s 110 to be accompanied by written order of Executive Magistrate under Section 111 and admittedly nothing in this regard has been done by respondent no.2 and therefore, the said interim order was illegal.
7. It is further case of the petitioner that no fair opportunity of hearing was given to the petitioner as per basic principles of natural justice. It is further case of the petitioner that his illegal detention and malicious prosecution and interim illegal order amount to violation of his fundamental rights. The petitioner is a Government Servant, subjected to illegal criminal proceedings and detention and therefore, he is entitled to compensatory costs as his reputation is maligned and his service record is adversely affected due to orders passed by the authorities under Sections 107, 110 and 116 of Cr.P.C.
8. According to the petitioner, the interim ::: Downloaded on - 09/06/2013 13:53:48 ::: 7 order is, prima facie, illegal on the count that order under Section 116(3) of Cr.P.C. directing to furnish security and bond can be made only after commencement of enquiry provided the allegations forming the basis of proceedings are tested by enquiry and judicial mind is applied for ascertaining whether there is prima facie justifiable basis for such directions; so also some evidence has to be there against the accused.
It is further case of the petitioner that no such steps as stated herein above have been followed by respondent no.2 and hurriedly premature, illegal order of interim bond was passed by respondent no.2. Even, Respondent no.3 has not bothered to ascertain truthfulness of allegations made by Sitaram Tambe and illegally applied severe and drastic provisions of section 110(e) and (g) to the case of the petitioner for unwarranted reasons and illegally arrested the petitioner by abusing powers given u/s 41(2) of cr.P.C., thereby affecting reputation of the petitioner and his family in the society.
9. It is further alleged by the petitioner that the respondents 2 and 3 are acting as a puppet at the hands of said Sitaram Tambe which ::: Downloaded on - 09/06/2013 13:53:48 ::: 8 will be clear from the fact that when the certified copy of the interim order was applied for, at that time only report of respondents 2 and 3 was supplied by putting blank paper on the portion on which said illegal interim order was passed by respondent No.2, when it was his statutory duty to furnish certified copy of the order, when applied. It was incumbent on respondent No.2 to ask only reasonable security as per need of the hour but, even though initially in earlier chapter case no.120/99 petitioner and his family members have furnished solvent surety of Rs.1,00,000/- yet exorbitant cash and solvent surety of Rs.75,000/- was again demanded illegally within 15 days. Such exorbitant amount cannot be claimed on interim bond as per statutory provisions. The petitioner has prayed for quashing of those chapter cases.
10. On the basis of the pleadings in the petition, the points which are formulated in the petition by the petitioner are as under:
(i) Whether the Executive Magistrate has powers to pass orders under Sections 107, 110, 111 and 116(3) of Cr.P.C. against a ::: Downloaded on - 09/06/2013 13:53:48 ::: 9 Government Servant like the petitioner without seeking prior sanction of the appointing authority?
(ii) Whether the Executive Magistrate has power to order heavy surety u/s 116 of Cr.P.C. without considering merits of the case?
(iii) Whether the Executive Magistrate can pass order under Section 116(3) of Cr.P.C.
before conducting an enquiry?
(iv) Whether Respondents No.2 and 3 wrongly applied the provisions of Section 110 of Cr.P.C. against the petitioner who is a Government Servant and wrongly arrested the petitioner under Section 41(2) of Cr.P.C.?
(v) Whether the order passed by the Executive Magistrate under Section 107 of Cr.P.C. on the same day on which the complaint was received, directing the petitioner and his three sons to execute P.R. bonds and produce solvent surety of Rs.25,000/- each without affording any ::: Downloaded on - 09/06/2013 13:53:48 ::: 10 opportunity to them to put forth their case is correct?
11. The petition was heard by this Court for admission on 7.7.1999 and Rule was granted.
12. When the matter was taken up for final hearing, none appeared for the petitioner. Mrs. S.S. Autade, learned A.P.P. appeared for respondents 1 and 2 and, Shri K.C. Sant appeared for Respondent no.3. The Written Submissions on behalf of Respondent No.3 tendered by Advocate Shri K.C. Sant are taken on record.
13. I would like to deal with the first point as to whether it is necessary to obtain prior permission of Government authority before order is passed against a Government Servant u/s 107, 110, 111 an 116 of Cr.P.C.?
14. It is necessary to obtain prior sanction to prosecute a Government servant when the Government servant acts in official capacity and in discharge of his official duties, he makes certain acts, in those cases since his action is in discharge of his official duties, it is necessary to take prior ::: Downloaded on - 09/06/2013 13:53:48 ::: 11 sanction from the appointing authority. However, in case of present petitioner, it was not necessary to take any prior sanction from the appointing authority to prosecute the petitioner since the actions for which the orders were passed under Section 107, 110, 116 of Cr.P.C. by the Executive Magistrate were not the actions of the petitioners in due discharge of his official duties. There is no connection of his actions for which order was passed by the Executive Magistrate in relation to his official duties. Therefore, first point raised by the petitioner that unless there was prior permission by the Government authority i.e. appointing authority of the petitioner, no order should have been passed by the Executive Magistrate under the provisions of section 107, 110, 116 of Cr.P.C. is required to be rejected.
15. Coming to the second point i.e. the order passed by the Executive Magistrate on the basis of N.C. registered against them on 15.3.1999, the petitioner and his three sons were directed to execute P.R. bonds and produce solvent surety of Rs.25,000/- each u/s 107 of Cr.P.C. on the same day.
::: Downloaded on - 09/06/2013 13:53:48 ::: 12. It is true that the Executive Magistrate has passed the order under Section 107 of Cr.P.C.
and directed the petitioner and his three sons to execute P.R. bonds and produce solvent surety of Rs.25,000/- each on the same day. The provisions of Section 107 of Cr.P.C. reads thus:
"107. (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.
. (2) Proceedings under this section
may be taken before any Executive
Magistrate when either the place where the
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13
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."
16. Mere perusal of the provisions of Section 107 Cr.P.C. makes it clear that it is necessary to make enquiry in the matter, issue show cause notice to the concerned person after receiving information and after completing the formalities, the Magistrate has to come to the conclusion as to whether the activities of the said person are likely to commit breach of peace or disturb the public tranquillity and whether there is sufficient ground to proceed against the said person. Only after satisfying the provisions of the said section, the Executive Magistrate can pass an order. It is relevant to mention that the State Government has directed that cyclostyled orders u/s 107 of Cr.P.C. should not be issued and order should not be passed without recording reasons as the orders are quashed generally on these grounds. In the instant case, the Executive ::: Downloaded on - 09/06/2013 13:53:48 ::: 14 Magistrate has not recorded reasons for passing an order under Section 107 of Cr.P.C.
17. In case of the petitioner when the order was passed by the Executive Magistrate u/s 107 of Cr.P.C., the provisions which are enumerated under Section 107(1) are not followed. Therefore, the order passed by the Executive Magistrate u/s 107 of Cr.P.C. was not sustainable. However, the said order was for one year and since the petitioner and his sons executed bonds for that period, the said order got implemented.
18. Coming to the next point that whether respondents 2 and 3 wrongly passed the order under Section 110(e) and (g) of Cr.P.C. on the complaint of Dagadu Patilba Tambe on 17.3.1999, it is seen that the said complaint was received by the authority on 17.3.1999 and order was passed by the authority on 30.3.1999. The provisions of Section 110(e) and (g) are reproduced herein below:
"110. When an Executive Magistrate receives information that there is within his local jurisdiction a person who-::: Downloaded on - 09/06/2013 13:53:48 ::: 15
(a) .....
(b) .....
(c) .....
(d) .....
(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or
(f) .....
(g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit."::: Downloaded on - 09/06/2013 13:53:48 ::: 16
19. Mere perusal of the provisions of Section 110(e) and (g) would show that when a Executive Magistrate receives information about a person who habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, and is so desperate and dangerous as to render his being at large without security hazardous to the community, Magistrate may require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.
20. The above provisions would show that for passing any order u/s 110(e) and (g) of Cr.P.C.
against the person concerned, he must be a habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community and it has to be proved by evidence on record. The provisions in clear terms indicate that enquiry is necessary before passing the order under Section 110(e) and (g) of Cr.P.C. In the instant case, the order has been passed in a casual manner by the Executive Magistrate without recording reasons and without ::: Downloaded on - 09/06/2013 13:53:48 ::: 17 having sufficient evidence on record, which would disclose that the petitioner was habitual offender or he was so desperate and dangerous as to render his being at large without security hazardous to the community.
. This Court had an occasion to interpret the provisions of Section 110(e) and (g) of Cr.P.C.
in case of Mohan Parmanand Khatri v. M.G. Ingle and others [2004(1) Mh.L.J. 524].
524] Paragraphs 5, 6 and 7 of the said judgment reads thus:
"5. Section 110 of the Code empowers the Executive Magistrate to obtain security for good behaviour from habitual offenders.
It empowers him to get the security for good behaviour from such persons who are in the habit of doing the things mentioned in sub-sections of the said section. So far as the present application is concerned, it would be necessary to look to provisions of section 110(e) and (g). Section 110(e) and
(g) authorises such Executive Magistrate to take the security for good behaviour from the persons who habitually commit or attempt to commit, or abet the commission ::: Downloaded on - 09/06/2013 13:53:48 ::: 18 of, offences, involving a breach of the peace, or are so desperate and dangerous as to render their being at large without security hazardous to the community. In this context the word "habit" has to be understood in proper perspective. "Habit"
connotes that person should be committing such acts recurrently so as to allow a reasonable person of reasonable prudence to come to a reasonable conclusion that he is in the habit of committing such acts.
Stray
incidents would not permit a
legitimate inference or conclusion of
"habit". "Habit" indicates that the person
should be addicted to commission of such
acts and it should be his habit to commit
such acts. Unless there is material on
record to show that such person is in the
habit of committing such acts, the
executive magistrate would not be entitled
legally to ask such person to furnish the
bond of good behaviour.
6. So far as sub-section (g) is
concerned, the behaviour of such person
should be sufficient enough to indicate
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19
that he is a desperate person and likely to commit the acts which have been mentioned in section 110 of the Code. One should be sure that in all probabilities he would be committing such acts irrespective of prudence prevailing on him or any restraint in his behaviour. There should be material on record to show that he is so dangerous to the society that his being at large would be dangerous to the society as such in respect of the acts indicated by section 110 of the Code. The words "desperate" and "dangerous" should be understood in proper perspective. They are not to be used irrationally, loosely and for the purpose of curtailing liberty of the citizens.
7. Furnishing the bond of good behaviour causes a social stigma and that cannot be forgotten. It should not be taken lightly. Without any justifiable cause or ground, a citizen should not be asked to furnish the bond of good behaviour in a democratic republic wherein his liberty, his status has been guaranteed by the Constitution. His fundamental rights ::: Downloaded on - 09/06/2013 13:53:48 ::: 20 should not be humiliated or molested on insufficient material and he should not be put to social stigma or embarrassment.
Asking a citizen to furnish a bond has to be taken with its proper significance."
21. Perusal of paragraphs 5 to 7 of the judgment in Mohan's case (supra) makes it clear that the word "habit" has to be understood in proper perspective. "Habit" connotes that person should be committing such acts recurrently so as to allow a reasonable person of reasonable prudence to come to a reasonable conclusion that he is in the habit of committing such acts. Stray incidents would not permit a legitimate inference or conclusion of "habit". "Habit" indicates that the person should be addicted to commission of such acts and it should be his habit to commit such acts. Unless there is material on record to show that such person is in the habit of committing such acts, the executive magistrate would not be entitled legally to ask such person to furnish the bond of good behaviour.
22. Without going into details, it is apparent that the Executive Magistrate before passing ::: Downloaded on - 09/06/2013 13:53:48 ::: 21 orders under Section 110(e) and (g) of the Cr.P.C.
against the petitioner has not properly followed the procedure. The order does not disclose that there was sufficient material on record to pass such an order and, therefore, the order passed by the Executive Magistrate u/s 110(e) and (g) of the Cr.P.C. against the petitioner was unsustainable.
23. The last contention of the petitioner is that there is no power to the authority to impose heavy surety under Section 116 of Cr.P.C. without considering merits of the case and the authority cannot pass an interim order under Section 116(3) of Cr.P.C. without following procedure as required by Chapter VIII of the Cr.P.C. It is the contention of the petitioner that respondent No.2 passed order directing the petitioner to produce cash surety of Rs.25,000/- and solvent surety of Rs.50,000/- by way of interim order under Section 116 of the Cr.P.C. without considering the merits of the case.
24. Mere perusal of the provisions of Section 116(3) of Cr.P.C. would demonstrate that even while passing interim order under Section 116(3) of the said Code, the authority is supposed to ::: Downloaded on - 09/06/2013 13:53:48 ::: 22 record reasons in writing and without recording reasons, such order cannot be passed. What I find in the instant case is that no such reasons have been recorded by the Magistrate while passing order under Section 116(3) of Cr.P.C.
. In view of the above discussion, the petition deserves to be allowed partly. Since the orders passed by the authorities are already executed in the year, 1999 and no interim relief was granted in favour of the petitioner. I do not see any reason to grant prayer for compensation made by the petitioner. So far as the contention of the petitioner that he being a Government Servant, respondents should have taken prior permission or sanction before prosecuting him is concerned, it is to be noted that prior permission / sanction to prosecute a Government Servant is necessary when the acts done by the Government Servant are done while discharging his official duties. Such is not the case herein and hence, prior sanction to prosecute the petitioner was not necessary.
. It is made clear that Respondent No.3 only acted as a forwarding authority and the orders ::: Downloaded on - 09/06/2013 13:53:48 ::: 23 impugned in this petition were ultimately passed by Respondent No.2. The allegations made against Respondent No.3 in the petition are not sustainable.
25. In the result, Rule is made absolute partly. Criminal Writ Petition is partly allowed in terms of prayer clauses (B),(C) and (F) only.
[ S.S. SHINDE ] Judge.
PLK/ ::: Downloaded on - 09/06/2013 13:53:48 :::