Orissa High Court
Jairam Mohanty And Ors. vs Bhagaban Pradhan And Ors. on 15 July, 1994
Equivalent citations: 1994(II)OLR455
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioners call in question legality of order passed by Executive Magistrate, Bhubaneswar on 28-8-1993 initiating a proceeding Under Section 107, Code of Criminal Procedure, 1973 (in short, 'Code'), and directing the petitioners to show-cause as to why they shall not be required to execute bond in terms of Section 111 of the Code. The said order was assailed before the learned Additional Sessions Judge, Bhubaneswar, who held the same to be not maintainable on the ground that the order in question was an interlocutory order. Therefore, petition Under Section 482 of the Code has been filed before this Court. The learned counsel for petitioners accepted that though a revision had been filed before the learned Additional Sessions Judge, Bhubaneswar, there is no bar for moving this Court Under Section 482 of the Code.
2. It is trite law that exercise of power Under Section 482 cannot be resorted to in entertaining a second revision which is barred Under Section 397(3) of the Code. In the instant case the position seems to be different. Undisputedly the petitioners could have directly come to this Court Under Section 482 of the Code. In that view of the matter, the application is entertained.
3. The factual position necessary for adjudication of this application is as follows :
Opposite parties filed an application in terms of Sec 107 of the Code before the Executive Magistrate alleging that there was apprehension of breach of peace and public tranquillity. They alleged that while they were returning from the market on 21-8-1993, present petitioners, headed by petitioner No. 1 came in a group armed with sticks, cycle chains etc., obstructed their way, threatened to assault and to set fire to their house and scolded them in vulgar language, and also attempted to assault them. On hearing their cries for help, other villagers rushed to their rescue. Statement of one of the applicants (present opp. party No. 1) was recorded. The Executive Magistrate passed the impugned order. It was submitted by petitioners that the case is in essence a counter case to Misc. Case No. 2.90 of 1992 pending before the Executive Magistrate, and the same was also Under Section 107 of the Code. Legality of proceeding is challenged on the ground that merely on perusal of the complaint petition and on examination of one of the complainants on oath, such a proceeding should not have been initiated.
The learned counsel for opposite parties on the other hand submitted that Section 107 refers two satisfaction of the Magistrate, and since the Magistrate was satisfied about existence of apprehension relating to breach of peace and public tranquillity, the proceeding has been validly initiated.
4. There may be cases where the proceedings may be instituted under Sec 107, Cr PC, at the instance of a private complainant who may be apprehensive of the breach of the peace by the person complained against. The Magistrate is not to set automatically the law into motion on receiving an information, but is vested with the discretion to satisfy himself that there is sufficient ground for proceeding. The method and manner of reaching such satisfaction is left to judicial discretion. If the Magistrate receiving the information does not formulate any opinion of his own but nevertheless proceeds to make the preliminary order, decidedly he commits the initial mistake, as the very foundation of the preliminary order would be lacking. In that contingency the preliminary order itself will be illegal and the entire proceeding will be liable to be quashed.
The sine qua non for institution of proceedings Under Section 107 is that the Magistrate must be of the opinion that there is sufficient ground for proceeding against the persons informed against. The Magistrate is bound to record his opinion before proceeding further. However, he is the sole authority to decide whether or not it is imperative for the maintenance of peace to institute proceedings. His discretion in this regard is absolute and unqualified It is the responsibility of the Magistrate to see that public peace or public tranqiullity is maintained. In order to attract Jurisdiction under Sec.107 the Magistrate is to receive information and then form an opinion as to whether there is sufficient ground as to proceed and when these two conditions are satisfied, he can take such action. The object of Sec, 107 like the proceeding Under Section 106 is in aid of an orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose, the Executive Magistrates are invested with large discretionary powers for the preservation of public peace in order. The justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of commission of offences. The " section is preventive . and not punitive. It is not intended for punishment of past offences and the sole idea of starting proceedings under this section against an individual is. to prevent him from commission of breach of peace which is imminent. The foundation of Jurisdiction for action Under Section 107 is credible information from a police officer or a private person, The information must disclose a likelihood on the part of any person to commit a breach of the peace or to do ony wrongful act, that may probably occasion a breach of the peace.
5. The Magistrate must apply his judicial mind and should not pass a mechanical order merely because he has received a report from the police. But there can be no sweeping generalisation to require the Magistrate to embark upon further enqiry before issuing process. There may be cases where the Magistrate may refuse to act only on the police report though the police officer is satisfied that there is an imminent danger to public peace and has made a report to the Court, and may embark upon further enquiry. But to make it an invariable rule would go against statutory intents, and defeat purpose of its enactment. necessity for further enquiry would depend upon nature of information received, its credibility and congency as revealed in the police repit and other relevant aspects.
An order to execute a bond issued before an offence is committed is judicial in character even though it has the appearance of an administrative order. Satisfaction to be reached by the Magistrate is to be judicial satisfaction. It is not necessary to the Magistrate to wait for police report, and he can in appropriate cases act only upon the information received from the private complainants. However, when a Magistrate desires to take action only upon ex parte allegations made by a party, a very rigorous test and juxtaposition should be adopted for coming to conclusion that there is an emergent situation for apprehension of breach of peace and threat to public tranquillity.
6. The manner of reaching discretion is left to judicial discretion and larger the discreation greater is the need for restraint. The discretion of a statutory body is never unfettered. It is the discretion which is to be exercised according to law. That means at least this : the statutory body must be guided by relevant considerations and not by irrelevant considerations. If its decision is influenced by extraneous considerations which it ought not to have taken into account, the decision cannot stand. It must be governed by rule, not by humour it must not be arbitrary, vague and fanciful. Discretion is a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.
7. The records of the case before the Executive Magistrate show that on the petition filed on 26-8-1993, the Magistrate made an endorsement to the effect that a proceeding Under Section 107 of the Code was to be started against present petitioners. But the order-sheet starts with notices from 28-8-1993. Further, in the petition itself it was mentioned by present opposite parties that the present petitioners had initiated a proceeding Under Section 107 of the Code and the prayer was to initiate a counter proceeding. In the aforesaid background, further enquiry was warranted.
Judged in the aforesaid background, the impugned order fails short of the obligatory requirement, and therefore, cannot be maintained.
The application is accordingly disposed of.