CHANDRAMANI NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) An order passed by the Executive Magistrate initiating a proceeding under S.107, Cr. P.C. against the petitioners and thereafter by a subsequent order directing them to execute interim bond of Rs. 500/- each with one local surety for the like amount tokeep peace for a period of one year or till the conclusion of the enquiry whichever is later are impugned in this revision. The brief facts are that on 11-7-1989 the Magistrate passed orders on perusal of the report received from the Officer-in-charge to initiate a proceeding u/S.107, Cr. P.C. The order revealed his satisfaction to have been reached only upon the police report of the petitioners having formed a strong combination against the opposite party Nos. 2 to 10 with the common object of putting them into troubles and loss and to have been committing overt acts resulting in serious apprehension of breach of peace. On 22-8-1989 the representative of the delinquents was present. Some documents had been filed by the Officer-in-charge. The Magistrate examined him and perusing the documents passed an order, as an interim measure, directing the petitioners toexecute the bond.

(2.) Mr. Mohapatra, the learned counsel appearing for the petitioners, urges firstly that the initiation of the proceeding was itself misconceived having been exclusively based upon the police report and secondly that no orders u/S. 116(3), Cr. P.C. should have been passed without the enquiry having been commenced.

(3.) Both the submissions of Mr. Mohapatra are well sustained. In a catena of decisions this Court has held that the proceeding u/S. 107, Cr. P.C. is not to be initiated only upon the basis of the report of the police or the statement of the police officer. The Magistrate is under a duty to conduct some enquiry to be satisfied of the materials existing regarding the necessity of the proceeding u/S. 107, Cr. P. C. That having not been done, the proceeding was initiated without competence. It was also held by a Full Bench of this Court in (1980) 50 CLT 245 : (1981 Cri LJ 39). (Sone Khan v. State) that in a proceeding initiated u/ S. 107, Cr. P.C. the enquiry does not commence as soon as the delinquent appears and the notice u/S. 112, Cr. P.C. is read out to him. The Supreme Court has emphasised in AIR 1971 SC 2481 : (1971 Cri LJ 1715) (Madhu Limaye v. Ved Murti) on the position that bare allegations cannot form the foundation of the order for a bond and failing furnishing of it, the detention of the delinquent. The allegations have got to be tested. The mandate of the law is that the enquiry must commence and the Magistrate must proceed to ascertain the truth of the allegations by application of his judicial mind and look for materials which would substitute allegations into facts. The enuiry contemplated is an acceptable legal process by which allegations can be converted into facts. Applying the test it is seen that the enquiry had not commenced in proper sense and as such the Magistrate had no competence to pass an order directing the petitioners to execute bond as an interim measure.