KUNHAMBU NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners were arrested on 15-12-1975 under S.107 read with S.111 of the Code of Criminal Procedure and brought before the Sub Divisional Magistrate, Kasaragod along with a report counter signed by the Asst. Superintendent of Police, Kasaragod to the effect that the counter petitioners are likely to commit breach of the peace and are likely to do wrongful acts that may probably occasion a breach of the peace. A preliminary order under S.107(1) read with S.111 of the Code of Criminal Procedure was issued to the petitioners calling upon them to show cause why they should not be ordered to execute a bond for Rs. 2000/- each with two sureties for like sums for keeping the peace for a period of one year. Before the enquiry against the petitioners commenced on 6-11-1976 the Sub Divisional Magistrate, Kasaragod issued another order under S.116(3) of the Code of Criminal Procedure directing the petitioners to execute a bond with two solvent sureties for Rs. 10,000/- each for keeping the peace pending the enquiry, failing which, it is stated, they would be detained in custody until such bond is executed. The petitioners filed a revision petitioner before the Sessions Judge, Tellicherry challenging the above order. The learned Sessions Judge, held that the petition was barred under S.397(2) of the Code of Criminal Procedure, the order impugned being an interlocutory order passed pending the proceedings. The present petition is filed under S.482 of the Code of Criminal Procedure for quashing the order passed on 6-11-1976.

(2.) The order is impugned on the ground that it contravenes S.116(3) of the Code of Criminal Procedure. The Magistrate, it is stated, directed execution of an interim bond before the commencement of enquiry. This is contrary to the provisions of S.116(3) and hence without jurisdiction. The second ground of attack is that the Magistrate omitted to consider whether there are really circumstances which justifies the execution of an interim bond. The complaint of the petitioners is that the Magistrate merely based his decision on the report of the police officer and did not himself satisfy that there are grounds for calling upon the petitioners to execute bond. The petitioners would contend that no proper grounds are made out for directing the petitioners to execute the bond. The last objection is that there has been non compliance of proviso (b) to S.116(3).

(3.) There is weight in the contentions. The preliminary order was passed on 15-12-1975. The direction to execute interim bond in the instant case is seen issued on 6-11-1976 nearly eleven months after the preliminary order It is not clear from the order whether enquiry has commenced. The Magistrate has only mentioned in the order that be has received a report from the Sub Inspector of Police "stating that the aforesaid counter petitioners are on enemical terms and as a result some complaints are still being received against the above counter petitioners for causing disturbance which may lead to an immediate breach of peace and disturbance of public tranquillity". The order does not show the nature of the complaints received or whether the Magistrate has applied his mind to the nature of the complaints and to the necessity for calling upon the petitioners to execute the interim bond in the light of the facts placed before him. An interim bond is to be executed only in emergent cases where there is real necessity for such a course. It is to be ordered only after the commencement of the enquiry The order should not be made on a mere report by the police that there is likelihood of breach of peace. The Magistrate should enquire and prima facie satisfy himself about the truth of the information and record his reasons before calling upon a person to execute an interim bond.