FAKIR CHARAN SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) -The petitioners, who are residents of Cuttack town have challenged the notice under section 107 of the Code of Criminal Procedure (CodeT for short) served on them by the Executive Magistrate (City), Cuttack, directing them to show cause as to why they should not be ordered to execute bonds for Rs. 500/- with one local surety each for the like amount to keep peace for a period of six months.

(2.) Mr. P. K. Nanda, learned counsel appearing for the petitioners, has urged that before issuance of the notice, the Executive Magistrate did not apply his judicial mind to the facts of the case; so much so, that he did not hold a fact finding enquiry as to the existence of grounds for initiation of the proceeding under section 107 of the Code. In support of his contention, he has placed reliance on the decisions Adikanda Sahu v. Kasiram Rout1, Bairagi Charan Jena and others v. State of Orissa2 Harekrishna Singh and others v. Kailash Ch. Deura and others3, and Rama Chandra Jena and others v. Muralidhar Ojha4 and others which support his case. Law has been well settled by these decisions that the Executive Magistrate must have to hold a preliminary fact finding enquiry before a proceeding under section 107 of the Code is commenced and the delinquents are called upon to answer the notice or to execute bonds to keep peace. In this case it is noticed that no such fact finding enquiry was done. Neither witnesses were examined, nor any relevant documents were referred to and relied upon. On the other hand, solely on the basis of a police report, the proceeding was initiated. Even no attempt was made to examine the police officer who submitted the report as to the truth of the facts contained in the notice. From these facts, it is apparent that the Executive Magistrate did not apply his judicial mind before initiating the proceeding.

(3.) The above apart, a period of six months has already elapsed in the meanwhile and there is no further report available to the Court that despite the fact that there was no order of stay of operation of the impugned notice, there was any untoward incident as had been apprehended before initiation of the proceeding. This further strengthens the argument of the learned counsel that without any basis and for insufficient grounds, the petitioners were proceeded against in a case under section 107 of the Code.