RATNAKAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) On the report of an Amin, the Sub-divisional Magistrate, Talcher initiated a proceeding under section 107 of the Code of Criminal Procedure (Code for short) on 4- 6-1983 against the petitioners and directed them to show cause why they should not execute bonds for Rs. 1,000/- with one surety for the like amount to keep peace for a period of one year. On 4-7-1983 the petitioners appeared before the Magistrate through an Advocate and applied for adjournment to show cause on the ground of illness. Adjournment was refused and on the same day without commencement of an enquiry as contemplated in section 116(3) of the Code, the Magistrate passed the following order: Post to 13-7-83, directing the delinquents to personally be present and to execute an interim bond for Rs. 1,000/- each with one surety each. The petitioners are aggrieved with this order and have invoked the revisional jurisdiction of this Court not only to set aside the said order, but also to quash the proceeding.

(2.) Mr. Mohapatra, learned counsel appearing for the petitioners has raised the following contentions:

(3.) An Amin submitted a report to the Sub-divisional Officer who also functions as the Sub-divisional Magistrate of Talcher that he was making measurements of lands of mouja Danara, when petitioners along with about two hundred residents of the village surrounded and prevented him from making measurement of lands in the locality. They also threatened to destroy the records kept by the Amin and assault him. The record of the Magistrates court discloses that soon after the AminTs report was received and without making the slightest enquiry either from the Amin himself or from other sources, the Magistrate initiated the proceeding under section 107. Such a procedure has no sanction of law and has been disapproved by several decisions of this Court such as, Bairagi Charan Jena and others v. State of Orissa1 Harekrushna Singh and others v. Kailash Chand Beura and others2 and Rama Chandra Jena and others v. Muralidhar Ojha and others3. These decisions have reiterated the principle that in a case under section 107, the Executive Magistrate must have apply his judicial- mind and should not pass a mechanical order merely because he has received a report from the police. In the case of Harekrushna Singh (supra) this Court has gone to the extent of observing that the Magistrate should be satisfied on enquiry from other sources or on some other information in order to form an opinion that there are sufficient grounds to initiate a proceeding under section 107 so as to bind down a party and curtail his freedom. In the case of Bairagi Charan Jena (supra) it was observed that the intendment of legislature is that before any action is taken against a person to bind him down under the provisions of S.107, the Executive magistrate must apply his judicial mind and should not pass a mechanical order on the basis of a report. It has already been observed that in this case the magistrate initiated the proceeding solely on the basis of a report of an Amin and made no enquiry whatsoever from other sources. Therefore, there is nothing on the record of the proceeding to suggest that he had applied his mind to the facts of the case And having formed an opinion that there were grounds to proceed against the petitioners, he found that initiation of a proceeding under section 107 was imperative. This being the position, I have least hesitation to hold that the order passed by the magistrate on 4-6- 1983 was mechanical in character and cannot be supported.