KRISHEN CHAND Vs. STATE

JUDGEMENT

(1.) THESE three petitions raise common questions of fact and law and therefore will be decided by one judgment.

(2.) THERE were some disturbances in the city of Jammu as a result of which the ADM Executive Magistrate was moved for initiating proceedings under section 107 Criminal P. C. against the petitioner. From the order dated 19 -11 -1973 passed by the Magistrate it appears that a compliant was produced before him alleging that there were acts of violence in the city and that the accused were inciting other persons to commit violence. The Magistrate did not choose to take the statement of any officer or the complainant on oath with a view to satisfying himself whether the allegations made in the complaint were hearsay or were correct. The learned Magistrate then thought that in the interest of maintaining peace it was necessary to take interim bonds from the petitioners and he accordingly demanded interim bonds of Rs. 25,000 from the petitioners. It is against this order that these revisions are directed.

(3.) THE learned counsel appearing for the petitioners raised a short point before me. He submitted that even if the Magistrate had jurisdiction to proceed against the petitioners under S. 107, there were absolutely no materials to justify the Magistrate to issue an order taking interm bonds of a huge amount of Rs. 25,000. It is true that the Magistrate had drawn up proceedings under S. 107 and had read the order under S. 112 to the accused who wanted time to file their objection. S. 117(3) runs thus: - "Pending the completion of the inquiry under sub -s. (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under S. 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded." The words Ëœconsiders that immediate measures are necessaryâ„¢ are words of moment and are meant to safeguard the liberty of the subject. The Magistrate has to proceed under this subsection only if he is satisfied that there was a case of an emergency. The demanding of an interim bond particularly of huge amount, amount to curtailment of the liberty of the subject to a very great extent and should be resorted to by any Magistrate, whether he is an Executive or a Judicial Magistrate, without utmost care and caution. The learned Magistrate did not have before him any materials in the nature of any statement by any police officer or any other person to prove that this was a case of a very great emergency so as to resort to the extraordinary procedure prescribed by S.117(3) In fact I would point out that the Provisions of S. 117(3) are meant to be resorted to only in special cases and are not meant to he taken as a matter of routine once proceedings under S. 107 of the Criminal P. C. are drawn up. Executive Magistrates must realize that as a limb of the executive machinery they must conform to the rule of law and they cannot be permitted to play havoc with the liberty and freedom of the subject which is guaranteed to him by our Constitution. Whenever such Magistrates decide to resort to special procedures, they must first record their satisfaction of cogent materials which make out a special case, for adopting the extraordinary procedure.