Document Fragment View

Matching Fragments

Hon'ble Mrs. Manju Rani Chauhan,J.

Heard both sides.

This habeas corpus petition was filed by alleging that the petitioners have been detained in connection with proceedings under Section 107/116 CrPC, without any authority of law, even though they had furnished surety bonds.

It appears that a challani report was submitted by the Sub-Inspector of police station Sonauli, district Maharajganj on 11th August, 2018 to the Sub-Divisional Magistrate, Nautanwa, district Maharajganj in which it was alleged that as the petitioners were trying to fill up a pit in connection with which there was a dispute and, despite request they were not willing to stop their activity, which had given rise to serious threat to breach of public tranquillity in the locality, the petitioners were being produced after arrest under Section 151 CrPC. On their production before the Sub-Divisional Magistrate concerned, they submitted bail bonds. It appears that pending verification of the bail bonds, they were sent to judicial custody by fixing 18th August, 2018 as the date for further enquiry. At this stage, the petitioners filed this habeas corpus petition claiming that there was no legal justification for sending the petitioners to judicial custody pending verification of the bail bonds, more so when the notice served upon them was not in compliance with the provisions of Section 111 of the CrPC and no satisfaction was recorded as is mandatorily required by sub-section (3) of Section 116 CrPC to detain the petitioners.

List this matter, again, on 19th August, 2019.

Let a copy of this order be supplied to the learned A.G.A. for information and compliance."

Pursuant to the order dated 30th July, 2019, Satyam Mishra, Sub-Divisional Magistrate, tehsil Nichlaul, district Maharajganj has filed his affidavit today, which has been taken on record. In the affidavit it is stated that he was holding the charge of office of the Sub-Divisional Magistrate, tehsil Nautanwa, Maharajganj on 11th August, 2018 as the Sub-Divisional Magistrate, tehsil Nautanwa was on leave and his link officer, namely, Sub-Divisional Magistrate, tehsil Farenda, Maharajganj was also on leave. In paragraph 5 of the affidavit it is stated that the petitioners were produced before the Sub-Divisional Magistrate, Nautanwa along with challani report dated 18th August, 2018 in connection with proceedings under Sections 151, 107/116 CrPC. It is stated that on the said date the deponent, namely, Satyam Mishra was holding charge of office of the Sub-Divisional Magistrate, Nautanwa, Maharajganj. It is further stated in paragraph 5 that the petitioner no.1, namely, Suresh Mani Tripathi had submitted personal bond and sureties to the tune of Rs.50,000/- and under the provision of Section 122 CrPC order was passed for verification of the sureties submitted by the said petitioner. In paragraph 7 it is stated that consequent to the verification of the sureties, on 18th August, 2018, he had directed for release of petitioner no.1, if he was not wanted in any other case.

Learned counsel for the petitioners has also invited our attention to the order dated 11th August, 2018, which is at page 53 of the rejoinder affidavit. It has been urged that the order dated 11th August, 2018 simply states that the accused (noticee) have submitted bonds of Rs.50,000/- and in the interest of justice the bonds are required to be verified. Till verification of the bonds, the noticee be kept in judicial custody in District Jail, Maharajganj. It has been submitted that such an order is in the teeth of the provisions of Section 116 CrPC, inasmuch as, sub-section (1) of section 116 CrPC provides 'when an order under section 111 has been read or explained under section 112 to a person 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 which action has been taken, and to take such further evidence as may appear necessary'. It has been pointed out to us that under sub-section (3) of section 116, the Magistrate has been conferred power of detention. Sub-section (3) of section 116 CrPC is extracted below:

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."

It has been urged that under sub-section (3) of section 116 CrPC, the reasons are to be recorded in writing before a person is detained in custody. It has been submitted that there are no reasons recorded in writing for the sake of preventive detention of the petitioner pending verification of the surety bonds. It has been urged that, firstly, the notice that has been served is not in compliance with the provisions of section 111 of the CrPC and, secondly, there is no satisfaction recorded by the Magistrate concerned to detain the petitioner in custody as is the requirement of sub-section (3) of section 116 CrPC.