SANG SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD the learned Counsel for the petitioners and the learned Public Prosecutor nobody appeared on behalf of non -petitioners No. 2 and 3 inspite of service of notice on them.

(2.) THIS petition has been filed against the order dated 26th April, 1994 passed by learned sub -Divisional Magistrate, Banner under Sections 107 and 116(3) of the Criminal Procedure Code. A perusal of the order passed by the learned Sub -Divisional Magistrate shows that Naib Tehsildar First Tehsil, Barmer submitted an information before the learned Sub -Divisional Magistrate to the effect that Khasra No. 1462/2 was under attachment and Nakhta Ram S/o Mehara Ram was living in the house constructed on that Khasra and Nakhta Ram was stopped by Tan Singh and Sang Singh from entering into his residential premises and that the aforesaid persons had illegally occupied the premises of Nakhta Ram. It was further reported to the learned Sub -Divisional Magistrate that Tan Singh and Sang Singh had spread terror and there was apprehension of the occurrence of some undesirable event at any time. On the basis of the information given by the Naib Tehsildar the learned sub -Divisional Magistrate registered a case under Section 107 of the Criminal Procedure Code and directed that notice be issued under Section 111 of the Criminal Procedure Code to Tan Singh and Sang Singh to show cause why they should not be called upon to furnish sureties of Rs. 2,000/ - and personal bond of like amount for keeping peace for a period of six months. By the same order the learned sub -Divisional Magistrate directed that warrant of arrest be issued against the non -applicants and fixed 17th May, 1994 for the appearance of the non -applicants and for filing their reply. It was further directed by the learned Sub -Divisional Magistrate that in the event the non -applicants do not admit the notice issued under Section 111 of the Criminal Procedure Code and want to contest, they should furnish surety bond and personal bond under Section 116 Sub -Section (3) of the Criminal Procedure Code for keeping peace.

(3.) I have carefully considered the submissions made by the learned Counsel for the petitioners Sub -section (1) of Section 116 of the Criminal Procedure Code provides that when an order under Section 111 has been read or explained under Section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. Sub -Section (2) of Section 116 of the Criminal Procedure Code provides that such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases. Sub -Section (3) of Section 116 of the Criminal Procedure Code provides that after the commencement, and before the completion of the inquiry under Sub -section (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 Section 111 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 proviso given below Sub -section (3) of Section 116 of the Criminal Procedure Code lays down that no person against whom proceedings are not being taken under Section 108, Section 109 or Section 110 shall be directed to execute a bond for maintaining good behaviour. A bare reading of Section 116 of the Criminal Procedure Code shows that after the arrest or appearance of the person against whom the proceedings have been instituted, an inquiry would be conducted for the purpose of ascertaining the truth of the allegations made against him/her and during such inquiry if the Magistrate is satisfied that immediate measures are necessary for the prevention of a breach of the peace of disturbance of the public tranquillity or the commission of any offence or for the public safety, he may for reasons to be recorded in writing demand sureties for keeping the peace or maintaining good behaviour until the conclusion of the inquiry. Sub -section (3) of Section 116 of the Criminal Procedure Code, therefore, cannot be invoked before the commencement of inquiry contemplated by Sub -section (1) of Section 116 of the Criminal Procedure Code. The later portion of the order passed by the learned sub -Divisional Magistrate is, therefore, not in accordance with the provisions of Section 116 of the Criminal Procedure Code.