BASHIR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE facts of this petition are that the petitioner Bashir was arrested by the police on 28-6-75 under sec. 151 Cr. P. C. But there is no record of his arrest, However, he was present, perhaps brought by the police, in the court of the City Magistrate, Jodhpur on the same day when the police filed a complaint against him, under sec. 107 Cr. P. C. THE substance of the complaint was that the accused had formed a group and with its help is always ready to enter into a brawl. He is a quarrel some fellow first rate and enjoyed such reputation. Three cases under secs. 147, 452, 323, 440 and 324 I. P. C. have already been registered and challaned against him. A complaint under sec. 107 Cr. P. C. was filed against him on 1912-73. Another case under sec. 110 Cr. P. C. was also instituted against him on 16-12-74. THE police requested the magistrate that in the interest of maintenance of peace it was necessary to bind him in an appropriate amount. THE Sub-inspector also appended an unsworn affidavit along with his complaint.

(2.) THE learned magistrate made a conditional order dated 28. 6. 75 under sec. 111 Cr. P. C. requiring him to show cause why he should not be bound down in the amount of Rs. 5,000/- with similar surety for a period of six months. THE learned Magistrate then read and explained his order to him. THE petitioner did not plead guilty and the magistrate fixed 10-7-75 for further proceedings but at the same time the learned magistrate purporting to act under sub-sec. (3) of sec. 116 observed that there was emergency imposed in the country, the petitioner was a 'badhmash' and a dangerous man and there was immediate danger of breach of peace and directed him to furnish interim bonds and surety in the aforesaid amount.

(3.) THE learned counsel then contended that interim bonds can be taken only after the commencement and before the completion of the inquiry. It was urged that when the order for interim bond was made on 28 6-75, no inquiry had commenced. THE argument is deduced from the wordings of sub-sec. (1) of sec. 116. It provides that when as order under sec. 1ll Cr. P C. has been read, or explained, or appears or is brought before the magistrate, he shall proceed to enquire into the truth of the information upon which action is being taken and to take further evidence as may appear necessary. Such inquiry shall be made as early as may be practicable in the manner prescribed for conducting the trial and recording evidence in summons cases. Commencement of the inquiry therefore, means commencemnt of an inquiry according to the summons procedure and the Magistrate should have made some effort to get some statement recorded. If nothing of this kind is done, the order is illegal. Reliance was pieced upon Madhu Linayc vs. Ved Murti (1 ). Since no witness was examined in this case, no inquiry had commenced so as to give jurisdiction to the Magistrate to ask for interim bonds.