RABI ALIAS RABINDRANATH BISWAL Vs. RANKANATH PRADHAN

JUDGEMENT

(1.) Initiation of a proceeding under Section 107, Cr.P.C. and issue of notice to the petitioners under Section 111 of the Code asking them to show cause as to why they would not execute bond for Rs. 1,000/with one surety each for the like amount to keep peace in the locality for one year is impugned in this application under Section 482, Cr.P.C. The sole submission of the learned counsel for the petitioners is that on the petition of the opposite parties as the first party who are private complainants, no proceeding of the like could have been initiated nor the petitioners could have been called upon to show cause without an enquiry having been made by the learned Magistrate so as to satisfy himself regarding the justifiability of commencement of the proceeding.

(2.) The opposite parties filed the application under Section 107, Cr.P.C. before the learned Magistrate alleging that the petitioner No. 1 was the custodian of the Kotha fund of the village and when the opposite parties demanded accounts thereof, petitioner No. 1 formed a combination to suppress the opposite parties and that on 25-5-90 the petitioners held a meeting and decided to take severe action against the opposite parties. On 26-5-90, 3-6-90 and 5-6-90 the petitioners entered into the houses of the opposite parties forcibly and committed theft for which a case had been registered against them by the police under Sections 454 /395, IPC. Again it was alleged that on 24-6-90 when the opposite parties were doing their agricultural work, the petitioners prevented the same and threatened them with serious consequences. The matter was also reported at the police station but as the police did not take any action, the opposite parties were compelled to initiate action under Section 107, Cr.P.C.

(3.) There is no dispute about the fact that the learned Magistrate, as his very order shows, recorded his satisfaction regarding apprehension of breach of peace and initiated the proceeding under Section 107, Cr.P.C. only upon perusal of the complaint petition, the copy of the F.I.R. and examining the opposite party No. 1 on oath. Such a question as is now raised was considered by the Supreme Court in the oft cited case of Madhu Limaye in AIR 1971 SC 2486 : (1971 Cri LJ 1720) where analysing the provision of Section 107, Cr.P.C. it was observed inter aria that there may be cases where the proceedings may be instituted at the instance of a private complaint who may be apprehensive of the breach of the peace by the person complained against. In such cases, the Magistrate is bound either to hold an enquiry himself by examining witnesses on oath or to get the enquiry made by the police, so that he may be able to form the correct opinion as to the existence of sufficient grounds for proceeding in the case. It is only after the Magistrate has taken these steps that he can proceed to make orders under Section 112 of the Code. This decision was later on relied upon in (1972) 2 Cut WR 1242 (Adikanda Sahu v. Kasiram Rout) where Hon'ble Mr. Justice S. K. Ray, as he then was, took the view that the language of Section 107, Cr.P.C. clearly indicates that the SDM is not to act automatically on receiving an information, but is vested with the discretion to satisfy himself that there is sufficient ground for proceeding. The method and manner of reaching such satisfaction is also left to his judicial discretion and the most obvious method is to hold a preliminary fact finding enquiry like the one envisaged in Section 202, Cr.P.C. It is now settled by a series of decisions of this Court that before action under Section 107, Cr.P.C. is initiated, the Magistrate is obliged to hold an enquiry to satisfy himself regarding existence of materials justifying action and that he can neither act on a mere police report or only upon a private complaint. Undoubtedly, the checks to be applied for initiating action only upon a private complaint are more rigorous than when action is to be taken on police report. Since the apex Court has held before taking action on a private complaint under the Section the Magistrate has to hold an enquiry and examine witnesses and it was later on explained by this Court that the enquiry as contemplated is in the nature of the enquiry under Section 202, Cr.P.C., it would obviously mean that the Magistrate can initiate the proceeding not merely on perusal of the complaint or by only examining the complainant himself on oath. The complainant would have the added responsibility to bring in more materials by way of examination of witnesses in support of his case So that on consideration similar to that under Section 203, Cr.P.C., the Magistrate would have the satisfaction to issue process and call upon the opposite parties to show cause against execution of bond. In view of such exposition of law I am not inclined to accept the submission of Mr. Mohanty that since the learned Magistrate had relied upon the sworn statement of opposite party No. 1 alone, the requirement of law should be taken to have been complied with.