HADU PALEI Vs. CHANDRAMANI MANTRI

JUDGEMENT

(1.) THIS revision is directed against an order passed by the Sub -divisional Magistrate, Banki directing each of the petitioners to execute interim bond of Rs. 500/ -with one surety of the tike amount to maintain peace during the pendency of the enquiry under Section 116 (3). Criminal Procedure Code A proceeding under Section 107 Criminal Procedure Code (Cr. Misc. Case No. 34/76) was started on 13 -8 -76 on police report stating that there was party faction between two sections in the village and there was likelihood of serious breach of the peace as ill feeling between the parties was intensely hot. Again another report was submitted before the said Magistrate on 19 -7 -77 from which it appeared that the 2nd party members in Criminal Misc. Case No. 34/76, i. e. the petitioners in this revision, destroyed the dwelling house of one Kangali Mantri, one of the members of the first party, on 17 -7 -77 and threw away the house materials. The Officer -in -charge of the police station also stated in that report that on the latter -mentioned occurrence he had already registered a criminal case under Sections 454, 427 and 380/34 I. P. C. and that he was apprehending further trouble of a serious nature in the village which would badly affect the law and order situation in the locality. On the above -mentioned two reports the Magistrate, by his order dated 19 -7 -77, issued notice to both the parties in the proceeding to show cause by 22 -7 -77 why they should not be required to furnish interim bonds. On 22 -7 -77 the Advocate for both the parties appeared before the Magistrate and made their submissions in favour of their respective parties. The Magistrate, on hearing the counsel for both the parties and on perusal of all the police reports before him, held that there were materials on record on which he was satisfied that the second party members in the proceeding were indulging in committing overt acts, and that there was distinct possibility of serious trouble brewing up in the locality in future. On that finding the Magistrate, by the impugned order dated 25 -7 -77, directed the second party members in the proceeding i. e. the petitioners in this revision, to execute interim bonds as stated above and directed the police to keep watch over the locality to maintain peace. As per the said order, 37 out of 39 delinquents executed interim bonds under section 116 (3) Criminal Procedure Code on that date. This Court, however, while directing issuance of notice for admission and hearing of this revision, has ordered interim stay of the operation of the said order.

(2.) MR . Das, the learned counsel appearing for the petitioners, contends that the impugned order directing the petitioners to execute interim bonds under Section 116 (3) Criminal Procedure Code is illegal as that order was passed before the commencement of the enquiry in the proceeding. According to him, the enquiry commences only at the stage when some witnesses are examined in the proceeding and an order under Section 116 (3) Criminal Procedure Code cannot be passed without the testimony of any witness to support the police report filed before the Magistrate. In support of his above contention he has cited the Division Bench decision reported in (1977) 44 Cut LT 381 : (1978 Cri LJ 124) (Ori) (Uchhaba Jena v. Kuiijabehari Rautray). That Bench, while deciding the question as to from which date the period of six months provided under sub -sec. (6) of Section 116 Criminal Procedure Code is to be calculated, held that the inquiry referred to in sub -secs. (3) and (6) of that section is with reference to the stage when both the parties appear before the Magistrate and he proceeds to inquire with reference to the evidence before him as to whether the delinquencies alleged are established or not.

(3.) MR . Sahu, the learned counsel for the Opposite parties, contends that sub -sec. (2) of Section 116 Criminal Procedure Code provides that the inquiry under Section 116 Criminal Procedure Code has to be made as nearly as may be practicable in the manner prescribed for conducting trial and recording evidence in summons cases. That being so, the inquiry under Section 116 Criminal Procedure Code would actually commence as soon as the delinquents appear before the Magistrate and the accusations or allegations against them are stated to them. If the delinquents appear before the Magistrate after receiving the summons under Section 113 Criminal Procedure Code requiring them to show cause as provided under Section 111 Criminal Procedure Code, then the Magistrate will not be required to state the allegations against them when they appear before him, as by then they knew those allegations from the notices served on them. But if the delinquents appear before the Magistrate before receiving such notices or if the Magistrate is possessed of any new allegations against the delinquents which could not be mentioned in the summons previously issued to them, then the Magistrate has to state the particulars of all the allegations against the delinquents to them when they appear before him. So the inquiry commences from that stage, and therefore the Magistrate shall be competent to pass an order under Section 116 (3) Criminal Procedure Code at that stage without waiting for witnesses to appear and testify before him, if of course he is satisfied on the materials already before him that such an action is necessary to prevent breach of the peace or the disturbance of public tranquillity in the locality in question. Mr. Sahu's above submission is supported by the Division Bench decision of the Bombay High Court reported in 1977 Cri LJ 120 (Dwarkanath v. State of Maharashtra) wherein in para 26 it is stated as follows :