BRAHMDEO SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed for quashing of the proceeding under Sec. 107 of the Code of Criminal Procedure drawn up against the petitioners on 31-5-79 by the Sub Divisional Magistrate, Barh. On 31-5-79 the learned Magistrate recorded an order that he was satisfied on the report of the Officer-in-charge of Barh P. S. that assauit had taken place between the parties on account of enmity which existed between them and Barh P. S. Case No. 12 (5) 79 had been instituted in that connection and that he was satisfied from the report that at any time rioting or any other unpleasant incident could take place between the parties. Therefore, both parties were directed to show cause as to why they should not furnish bonds of Rs 5000 each with two sureties of the like amount each for keeping the peace for a period of one year.

(2.) The petitioners contend that the order does not set forth the substance of the information received by the learned Magistrate on which he decided to draw up the proceeding under Sec. 107 of the Code of Criminal Procedure against them. The petitioners contend further that when a case of substantial offence for assault is pending against them, there cannot be any justification for drawing up a proceeding against the petitioners under Sec. 107 of the Code of Criminal Procedure. Learned Counsel for the petitioners has pointed out that the notices issued to the petitioners in pursuance of the impugned order simply refers to Barh P. S. Case No. 12 (5)/791 under Secs. 307 and 304 of the Indian Penal Code. The notice also does not mention any other overt act against the petitioners justifying the initiation of the proceeding under Sec. 107 of the Code of Criminal Procedure against them.

(3.) Learned Counsel for the State has submitted that he has some difficulty in supporting the impugned order inasmuch as some assault had taken place between the parties for which a substantive case has been instituted, which is pending. In fact, it is that very incident of assault which has led to the initiation of the proceeding under Sec. 107 of the Code of Criminal Procedure against the petitioners Learned Counsel points out that there is no mention of any other overt act in the police report or in the impugned order against the petitioners which could justify the drawing up of the proceeding.