RAM RAJ PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is for quashing the proceeding started against the four petitioners under Section 107, Criminal Procedure Code (for short "the Code") on the ground that there is no case for action under this section, The preliminary order which was pased on 19th March, 1979 by the Subdivisional Magistrate, Hilsa in Case No. 120-M of l979 (State v. Dr. Ram Raj Prasad Singh and others) giving the substance of the information received by the Magistrate is as below :

(2.) Counsel appearing on behalf of the petitioners contends that the information received by the Magistrate is vague and not definite and hence the proceedings is question are liable to be quashed. In my opinion, the contention is well-founded and must prevail. The preliminary order afcer stating that the petitioners had abducted Gangadar Prasad Baskhore who was a candidate for the office of the Pramukh says that these petitioners are desperate, turbulent and were bent upon to create further trouble. It does not state that petitioners were likely to comit any particular or definit wrongful act or breach of the peace. Even the police report is silent about any specific or particular act likely to be committed by the petitioners for disturbing the public tranquility or which might occasion a breach of the peace. It mentions only a vague and general apprehension that the petitioners may compel Gangadhar Prasad Baskhore to change his statement or they may tease him or put his life or property in danger. It is not at all clear as to whether any particular act was going to be committed by the petitioner. The police report as well as the preliminary order refers only to the past act alleged to have been committed by the petitioners on 10th March, 1979 in connection with the election of Pramukh. Furthermore the petitioners have been dealt with in a lump. There is absolutely nothing either in the police report or in the preliminary order or in the proceeding that any of the petitioners individually was going to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. It is a well-settled principle that where substantive offences are committed by a person, the proper procedure is to institute regular cases for those offences under the Indian Penal Code or other Acts and not to start proceedings under Sec. 107 of the Code for them. In the present case a case under Sec. 365/368 of the Indian Penal Code has already been instituted as above mentioned and the petitioners cannot be made further liable for that past act Under Sec. 107 unless the requirements of that section are fulfilled. The jurisdiction which is exercised under Section 107 by the Magistrate is founded upon the administration of preventive justice. Under this section proceedings are intended to be preventive and not punitive, the object being to prevent persons from doing something which is likely to occasion a breach of the peace of disturbance of the public tranquility in the immediate or near future. The view taken of this section as early as in 1876 by the Madra High Court is to be found in 2 Weir 49 ; (1882) 5 Madras 380 (Queen v. Kedar Khan) : there the Magistrate called upon certain persons to show cause why they should not be bound over to keep the pease because complaints had been made against them that they were constantly creating disturbances in certain bazzars and they were required to enter into bonds for keeping the peace. Madras High Court expressed the opinion that the act of which information is given and in respect of which security is required must be an act which is shown to be in contemplation at the time of the information given and not merely one, a repetition of which may be expected or apprehended from past misconduct of the kind without anything further, This ruling is directly applicable to the present case. Here also the police report does not at all indicate that any particular act was in contemplation of the petitioners at the time of making of the police report, The apprehension that life and property of Gangadhar Prasad may be in danger is simply speculative and in this sense it must be said that the information which was given to the Magistrate was vague and general and not specific or definite. Neither the police report nor the preliminary order of the Magistrate indicates any likelihood of the commission in the near future of a particular or definite breach of the peace or disturbance of the public tranquility. The accusation is of general nature. Several decisions have been given By this Court in which accusation of a general nature has been depricated. See the case of Balkishan Sao v. Muno Khan, 1969 PLJR 223, Hasibuddin v. The State of Bihar, 1971 PLJR 193 Md, Alain v. Md, Madni, 1972 BLJR 674 and Bishun Yadav v. Syd. Ahmad Imam 1975 BBCJ 691. In Madhu Limaye v. Subdivisinal Magistrate, Monghyr, 1970 (3) SCC 746 at 760 in paragraph 36 the Supreme Court observed :

(3.) For the foregoing I am of the view that the substance of information as contained in the preliminary order, dated 19th March, 1979 of the Subdivisional Magistrate, Hilsa drawing up the proceeding under Sec. 107 is vague and indefinite" and does not conform to the requirements of Sec. 112 and hence no case has been made out for action under Sec. 107 of the Code. It is a clear case of misuse of the power under Sec. 107. Hence accepting this application I quash the proceedings against the petitioners. If the Subdivisional Magistrate have occasion to come to the conclusion that due to inimical feelings these petitioners or any of them or on their behalf are likely to commit breach of the peace or disturb the public tranquility in future, he will of course proceed against them according to law as provided in Sec. 107 of the Code or he may take other necessary measures in accordance with law. Petition allowed.