MOHOMMED SIDDIQUE MOHD IBRAHIM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Learned A. P. P. waives service. On the last two dates, I have extensively heard the submissions made by the learned Advocate for the Petitioner and the learned Associate Advocate General.

(2.) By this Petition under Article 226 and 227 of Constitution of India, the Petitioner has challenged the final bond dated18th April, 2006 taken by the second Respondent from the Petitioner under Chapter VIII of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code ). It will be necessary to refer to the facts of the case. The second respondent issued a show cause notice dated-24th March, 2006 to the Petitioner calling upon the Petitioner to show cause as to why a bond of Rs. 10,000/- for good behaviour should not be taken from the Petitioner. BY the said show cause notice, the date of hearing was fixed as 31st March, 2006. It is stated in the Petition that by exercising power under section 41 (2) of the said Code, on24th March, 2006 the Petitioner and his family members were arrested and were produced before the second Respondent. At that time, they were served with the said show cause notice. The second Respondent released the Petitioner and was granted time to provide for bail pending the hearing of the proceedings. On 7th April, 2006, the Petitioner produced surety before the second Respondent. He was made to sign several papers which were signed by the Assistant of the second Respondent. According to the Petitioner, the next date given was 18th April, 2006. On that day, he was informed that the proceedings have been decided. His allegation is that interim and final bond were allegedly got executed from him.

(3.) In the present case, action has been purportedly taken under section110 (a) (g) of the said Code. It will be necessary to refer to paragraph 9 of the said decision in case of Vasant Kumar, 2005 AllMR(Cri) 2951 which reads thus : "9. The power under section107 can be exercised when the Special Executive Magistrate receives an information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity. The said section further provides that if the Executive magistrate is of the opinion that there is sufficient ground for proceeding, he may in the manner provided in the Code require such person to show cause why he should not be ordered to execute a bond (with or without sureties) for keeping peace for such period, not exceeding one year, as the Magistrate deems fit. Section111 of the said Code mandates that when a Magistrate acting under section107 deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force. Section113 provides that if such person to whom notice is intended to be issued is not present in Court, the Magistrate shall issue a summons requiring him to appear. IN exceptional circumstances, the said section gives powers to the learned Magistrate to issue warrant of arrest. Section114 mandates that every summons issued under section113 shall be accompanied by a copy of the order made under section111 and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the same. Section116 lays down the procedure for holding the inquiry. Under section116, the Executive Magistrate is under obligation to make enquiry into the truth of the information upon which action has been taken and for that purpose he has to take such further evidence as may be necessary. Sub-section (2) of section116 mandates that such an enquiry shall be made as nearly as may be practicable in the manner prescribed for conducting the trial and recording evidence in summons cases. Sub-section (3) provides that if the Magistrate considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, he may after commencement but before completion of the enquiry, for reasons to be recorded in writing direct the person in respect of whom the order under section111 has been made to execute a bond with or without surety for keeping peace or maintaining good behaviour until conclusion of the inquiry and may detain him in custody until such bond is executed or in default of execution, until the inquiry is conducted".