JAIRAM MOHANTY Vs. BHAGABAN PRADHAN

JUDGEMENT

(1.) Petitioners call in question legality of order passed by Executive Magistrate, Bhubaneswar on 28 -8 -1993 initiating a proceeding Under Section 107, Code of Criminal Procedure, 1973 (in short, 'Code'), and directing the petitioners to show -cause as to why they shall not be required to execute bond in terms of Section 111 of the Code. The said order was assailed before the learned Additional Sessions Judge, Bhubaneswar, who held the same to be not maintainable on the ground that the order in question was an interlocutory order. Therefore, petition Under Section 482 of the Code has been filed before this Court. The learned counsel for petitioners accepted that though a revision had been filed before the learned Additional Sessions Judge, Bhubaneswar, there is no bar for moving this Court Under Section 482 of the Code.

(2.) IT is trite law that exercise of power Under Section 482 cannot be resorted to in entertaining a second revision which is barred Under Section 397(3) of the Code. In the instant case the position seems to be different. Undisputedly the petitioners could have directly come to this Court Under Section 482 of the Code. In that view of the matter, the application is entertained.

(3.) THERE may be cases where the proceedings may be instituted under Sec 107, Cr PC, at the instance of a private complainant who may be apprehensive of the breach of the peace by the person complained against. The Magistrate is not to set automatically the law into motion 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 left to judicial discretion. If the Magistrate receiving the information does not formulate any opinion of his own but nevertheless proceeds to make the preliminary order, decidedly he commits the initial mistake, as the very foundation of the preliminary order would be lacking. In that contingency the preliminary order itself will be illegal and the entire proceeding will be liable to be quashed. The sine qua non for institution of proceedings Under Section 107 is that the Magistrate must be of the opinion that there is sufficient ground for proceeding against the persons informed against. The Magistrate is bound to record his opinion before proceeding further. However, he is the sole authority to decide whether or not it is imperative for the maintenance of peace to institute proceedings. His discretion in this regard is absolute and unqualified It is the responsibility of the Magistrate to see that public peace or public tranqiullity is maintained. In order to attract Jurisdiction under Sec.107 the Magistrate is to receive information and then form an opinion as to whether there is sufficient ground as to proceed and when these two conditions are satisfied, he can take such action. The object of Sec, 107 like the proceeding Under Section 106 is in aid of an orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose, the Executive Magistrates are invested with large discretionary powers for the preservation of public peace in order. The justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of commission of offences. The ' section is preventive . and not punitive. It is not intended for punishment of past offences and the sole idea of starting proceedings under this section against an individual is. to prevent him from commission of breach of peace which is imminent. The foundation of Jurisdiction for action Under Section 107 is credible information from a police officer or a private person, The information must disclose a likelihood on the part of any person to commit a breach of the peace or to do ony wrongful act, that may probably occasion a breach of the peace.