PURSHOTTAM DASH Vs. BHASKAR DASH

JUDGEMENT

(1.) THE petitioners are the members of the second party in a proceeding under section 107 of the Code of Criminal Procedure (for short TCr.P.C.T) initiated at the instance of the opposite party who was the first party in the proceeding. Initiation of the proceeding, as well as the notice has been challenged in this case. THE proceeding was initiated on the grounds that on 15.6.1987 some of the petitioners commented on the conduct of the female folk of the family of the opposite party and all the petitioners being armed with deadly weapons came to assault him, on 10.7.1987 the petitioners pelted stones at the house of the opposite party damaging some of the household articles and again on 15.7.1987 they declared that they would kill the opposite party. After perusal of the petition under section 107, Cr.P.C. supported by affidavit and on hearing learned counsel appearing for the opposite party, but without making an enquiry as envisaged in section 202 and observed in Madhu Limaye and another v. Sub Divisional Magistrate, Monghyr, the proceeding under section 107, Cr.P.C. was initiated and the petitioners were directed to appear in the court and show cause as to why they should not be ordered to execute bounds for Rs. 1000/- with two sureties for the like amount to keep peace in the locality for a period one year. Learned counsel appearing for the petitioner has relied upon Fakir Charan Singh and others v. State of Orissa and another, and submits that before issuance of notice, a fact finding enquiry was not held by the Executive Magistrate and so initiation of the proceeding under section 107, Cr.P.C. was not in accordance with law. His contention is supported by facts. Relying upon the principles laid down in the case of Madhu Limaya and another v. Sub Divisional Magistrate Monghyr (Supra) this Court in Adikanda Sahu and another v. Kasiram Rout, held as follows: - THE Magistrate 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 envisaged in section 202, Cr.P.C. TI As already stated above, the initiation of the proceeding was not preceded by a fact finding enquiry of the nature as observed by the Supreme Court. I am bound to hold that the initiation of the proceeding under section 107, Cr.P.C. was not in accordance with law.

(2.) IN the result, the criminal Misc. Case is allowed and the impugned order of the Executive Magistrate, Khurda is set aside. Petition allowed