PANKAJBHAI HASTIMAL JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have made a prayer to set-aside the order dtd. 8/7/2021 passed by the learned 2nd Additional Sessions Judge, Rajula in Criminal Revision Application No.7/2018 confirming the order dtd. 12/12/2017 passed by the learned Additional Chief Judicial Magistrate, Dhari below Application Exh-21 in Criminal Case No. 106/2014 and further prayed that the application below Exh-21 filed by the petitioners in Criminal Case No. 106/2014 under the provision of Sec. 239 of the Cr.P.C. for discharge be allowed by setting aside the FIR being II- C.R. No. 1/2014 dtd. 2/1/2014 and the charge-sheet being 16/2014 in connection to it.

(2.) Mr. M.B.Parikh, learned advocate for the petitioners submitted that the allegations is to the effect that on 23/12/2013, respondent No.2- original complainant had filed written complaint before the Dhari Police Station alleging that at 10:15 am when he was going to temple, opposite Vaghpara, Dhari at that time the petitioner No.1 was standing there and he snatched the key of the motorcycle and called his brother - petitioner No.2. At that time, the petitioner No.2 along with his father came to the place and all of them started beating the respondent No.2 with rubber pipe on his leg. Respondent No.2, has stated in the complaint that he had escaped and went to the Police Station and approached the SHO who brought him for medical treatment. The allegation is that as per the say of the accused, they have business of explosive and the same has closed down because of the complainant and owing to that, the incident has taken place. It is also stated by the petitioners that in view of the written complainant by respondent No.2, the PSO Dhari Police Station Shri B.H.Kubawat noted the same as Station Diary Entry No. 15/2013 and registered the complaint being C.R. No. II- 267/2013 and inquiry to it resulted in Sec. 107 , 151 and 116(3) of Cr.P.C. and in connection with the said proceedings, on 30/12/2013, PSO Dhari Police Station arrested the petitioners and produced them before the learned Executive Magistrate, Dhari. Thereafter, Chapter Case being No. 591/2013 came to be registered. Learned Executive Magistrate was pleased to pass an order to give personal bond of Rs.5000.00 for the offence. Mr. Parikh, learned advocate submitted that on the same set of complaints, on 2/1/2014, Shri B.H.Kubawat, ASI Dhari Police Station has registered a complaint vide- II-C.R. No. 1/2014 for the offence punishable under Sec. 325 , 504 , 506(2) , 114 of IPC and the charge-sheet came to be filed on 19/2/2014 being No.16/2014.

(3.) It is required to be noted here that Chapter-8 of the Cr.P.C . gives the provisions for security for keeping the peace and for good behaviour. Under Sec. 107 of Cr.P.C the authority lies with the Executive Magistrate who on receipt of information that any person likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of the opinion that there is sufficient ground for proceeding, he may, in the manner provided in the Cr.P.C ., require such person to show 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. Such proceedings if taken before any Executive Magistrate, when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within the local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as mentioned in the Sec. beyond such jurisdiction. Sec. 107 of Cr.P.C. only provides the authority to the Executive Magistrate to proceed against the person who according to him on receiving information, is likely to commit breach of the peace or disturb the public tranquility or for any other wrongful acts as considered for breach of peace and public tranquility. In that occasion, for maintaining of peace, Executive Magistrate may pass an order in accordance with the Sec. 111 of the Cr.P.C.. The said proceedings is completely on the different field where it is only the Executive Magistrate who decides about the person who is likely to disturb the peace and public tranquility. While FIR lodged by the aggrieved before the Police is for the initiation of criminal proceedings against the accused, there is no case of any double jeopardy nor the proceedings would be hit by provision of Sec. 300 of Cr.P.C. The proceedings before the Executive Magistrate is as laid down in Cr.P.C while the FIR is under the Penal Code and the case of the petitioners would not fall even under Sec. 300 of Cr.P.C nor the principles laid down in the case of T.T.Antony v. State of Kerala (Supra) would be applicable.