RITA CHAKRABORTY @ RITA SEN Vs. ANJALI CHAKRABORTY

JUDGEMENT

(1.) The subject matter of challenge in this case is an order passed in connection with a proceeding under Section 107 of the Code of Criminal Procedure, which is reproduced below: -

(2.) Issue notice along with copy of P.R. upon OP/Ops. Named therein with direction upon him/them to show cause why a proceedings U/S 107 of the Code of Criminal Procedure, 1973 shall not be drawn up and made absolute against him/them on the basis of the P.R. & as to why he/she/they shall not be required to execute bond of Rs. 1,000/ - each for maintenance of Peace & tranquility for a period of 6 (six) months." According to the provision of Section 107 of the Code of Criminal Procedure when an Executive Magistrate received an information that any person is likely to commit a breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquility and is of the opinion that there is sufficient grounds for proceeding, in such a situation, the learned Executive Magistrate is very much empowered to issue show cause calling upon such person as to why he will not be directed to execute bond not exceeding for a period of one year. However from a plain reading of the aforesaid provision it is abundantly clear that the said provisions consist of two parts. Firstly, the Executive Magistrate is to form an opinion that the person against whom such information has been received is likely to commit breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquility and Secondly, there are sufficient grounds for proceeding against such person. Since, formation of such opinion is the integral part of assumption of jurisdiction to issue show cause notice against any person why he should not be asked to execute bond for keeping peace for a period not exceeding one year, the absence of recording of such opinion certainly vitiate the jurisdiction of the learned Magistrate to invoke his power conferred under section 107 CrPC.

(3.) Whereas the provision of section 111 CrPC provides how the order to be made, while a Magistrate acting under section 107 CrPC deems it necessary to require any person to show cause. According to the said provisions while making order in writing he has to set forth the substance of the information received and the amount of bond to be executed and the terms for which the same to be in force, and the number, character and class of sureties (if any) required. This requirement is in consonance with the requirement of principle of natural justice, which has many facets. Two of them are notice of the case to meet and an opportunity to explain.