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(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.?

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 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.

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 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.