AJIT MANNA Vs. SHANTILATA PANCHAL

JUDGEMENT

(1.) Perused the affidavit of service filed on behalf of the petitioner. It appears that the opposite parties were duly served with copy of the application as directed by order dated 6-12-91 but despite such service the opposite parties have not entered any appearance. None also appears today on behalf of the opposite parties on call.

(2.) Heard the learned Advocate for the petitioner. This is an application under Ss. 397/ 401/482 of the Code of Criminal Procedure. According to the averments made in the instant application, the opposite party No. 1 filed on 24-9-91 an application against the present petitioner under Ss. 144(2) and 107 of the Code of Criminal Procedure before the court of the Executive Magistrate at Uluberia. The petitioner's further case is that on 11-10-91 the learned Magistrate passed an order drawing up a proceeding under S. 107 directing the petitioner to show cause as to why he should not be asked to execute a bond of Rs. 1,000/- with surety of the like amount for one year and also directing the petitioner at the same time under S. 116(3) of the Code of Criminal Procedure to execute a bond of Rs. 500/- with surety of the like amount for maintaining good behaviour until further orders. On 12-11-91 the petitioner appeared before the learned Magistrate and prayed for time to file show cause and the learned Magistrate allowed his prayer. It is the further case of the petitioner that on 27-11-91 the petitioner filed show cause but the learned Magistrate issued warrant of arrest against the petitioner for his failure to execute a bond in terms of order dated 11-10-91. Being aggrieved by and dissatisfied with the order dated 27-11-91 the petitioner has come up before this Court praying for quashing of the proceeding as well as the impugned order.

(3.) On a plain reading of S. 107 it becomes clear that a person proceeded against under this Section is supposed to be directed to execute a bond for keeping peace and not for maintaining good behaviour. It is only when the proceeding has been drawn under any of the Ss. 108, 109 and 110 that the Magistrate has the jurisdiction to direct the person proceeded against thereunder to execute a bond for maintaining good behaviour. Thus the impugned proceeding is per se illegal by reason of the fact that the petitioner was therein directed to show cause as to why they should not be asked to execute bond for maintaining good behaviour. When the proceeding under S. 107, Cr. P.C. itself is meant for keeping peace and nut for maintaining good behaviour, the question of requiring a bond for maintaining good behaviour under S. 116(3) cannot arise and the order dated 11-10-91 whereby the petitioner is alleged to have also been directed by the Magistrate under S. 116(3) of the Code of Criminal Procedure. to execute a bond forthwith for maintaining good behaviour cannot be legally sustained for the simple reason that a bond for maintaining good behaviour is outside the scope and purview of a proceeding under S. 107 of the Code of Criminal Procedure. That apart, a plain reading of Sub-Sec.(3) of S. 116, Cr. P.C. will also make it clear that an order under that Sub-Section directing execution of an interim bond for keeping peace or maintaining good behaviour, as the case may be, pending the conclusion of the enquiry to be held in any of the proceeding under Ss. 107 to 110 can be made by the Magistrate only after the commencement and before the completion of such an enquiry and it is settled law that the enquiry under any of the Ss. 107 to 110 commences only after the person to be affected is either present in court or is brought before the court under summons or warrant with the result that no interim order under S. 116(3) can be passed ex parte or before the person against whom the preliminary order under S. 111 had been made appears before the Magistrate. A composite order under Ss. 111 and 116(3) cannot be made under the new Code for the simple reasons that an interim order under S. 116(3) can be made only after the Magistrate starts enquiry under S.116(1) in the presence of the person proceeded against. Evidently, in the instant case, the order, that was passed by the learned Magistrate on 11-1-91 was a composite order under Ss. 111 and 116(3) passed at a time when the preliminary order was yet to be served upon or made known to the petitioner and long before the petitioner appeared in pursuance of the preliminary order.