28 October 1970
Supreme Court








DATE OF JUDGMENT: 28/10/1970


CITATION:  1971 AIR 2486            1971 SCR  (2) 711

ACT: Code  of  Criminal  Procedure (Act 5 of  1898),  s.  117(3)- Magistrate  asking  for interim bond pending  completion  of inquiry--’Pending completion of inquiry’ meaning of.

HEADNOTE: Apprehending  violent  and  destructive  activities  by  the petitioners  th police arrested them without a  warrant  and took  them before the Magi irate to be bound over  under  s. 107  of the Code of Criminal Procedure No  proceedings  were drawn up under s. 107 before the arrest, and after they were taken before the Magistrate, on the report of the police, th Magistrate  drew up the order under s. 112 and it  was  read over  to  th petitioners.  Thereafter, under s.  117(3)  the Magistrate asked the pettioners to execute an interim  bond, and  as the petitioners refused to do so they were  remanded to custody.  The-Magistrate did not take any sworn statement or make any enquiry into the truth of the information before asking  for the interim bond and merely adjourned  the  case for  examination  of the petitioners without  summoning  any witnesses in support of the information. On the question of the validity of the detention, HELD : Under the scheme of the Code the Magistrate can  only as for an interim bond if he could not complete the inquiry. The  expression  ’pending completion of the inquiry’  in  s. 117(3) postulates commencement of the inquiry, which  means, commencing of the trial according to summons procedure.  The Magistrate cannot postpone the case and hear nobody and  yet ask for the interim bond. [749 C-D] In the present case, if interim bonds were required from the petition  the  Magistrate  ought to have  entered  upon  the inquire  and satisfied hi self, at least prima facie,  about the  truth  of the information in relation  to  the  alleged facts.  Without making any such inquiry the Magistrate could not require them to be detained in custody.  Therefore,  the proceeding for asking interim bond and the remand to custody were completely illegal. [750 C]



Sections 91 and 344 of the Code do not apply to persons like the  petitioners  who were brought before  court  under  the provisions of Ch.  VIII of the Code. [749 F] Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, [1971] 2 71 S.C.R., followed.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 307 of 1970. Petition under Art. 32 of the Constitution of India. The petitioner appeared in person. 743 K. Raiendra Chaudhuri and Pratap Singh, for petitioner No.2. L., M. Singhvi and O. P. Rana, for the respondents. The Judgment of the Court was delivered by- Hidayatullah,  C.J.-This  is a combined  petition  by  Madhu Limaye,  M.P.  a leader of the Samyukta Socialist  Party  of India and Ram Adhar Giri, Secretary of the same party in the District  of Varanasi.  This petition was heard  along  with Writ Petition No. 77 if 1970, filed earlier by Madhu Limaye, because both these petitions challenge the constitutionality of  Section  144  and Chapter VII of the  Code  of  Criminal Procedure.   By,  an Order passed unanimously by  a  Special Bench  of 7 Judges (of which we were also members)  on  that part  of the arguments, the petitioners stand  concluded  on the constitutional points raised by them.  The Special Bench holds that section 144 and the provisions of Chapter VIll of the Code of Criminal Procedure, when properly construed, are constitutional  and valid.  Applying the construction  which is elaborately indicated in that order we proceed to examine the petition. The case of the petitioners is that on August 3, 1970 one of them (Madhu Limnaye) arrived at Varanasi Airport from  Cal- cutta  and Ram Adhar Giri and others went there  to  receive him.   The  two  petitioners named  here  and  one  Narendra Shastri were arrested by the police at a level crossing when they  were proceeding by car to the city.  According to  the petitioners  they were not told the rounds of their  arrest but were taken to Varanasi Police Station and afterwards  to the City Magistrate’s Court.  On the way the Police Officers showed them the report made by the Police to the  Magistrate for  taking  action under sections 107/117 and  151  of  the Criminal  Procedure  Code.  When they  appeared  before  the Magistrate  he  read out a notice under section 112  of  the Code calling upon them to furnish security in the sum of Rs. 5,000  with two sureties in the like amount for keeping  the peace.   Narendra Shastri was however discharged as  it  was not  proved that he was the right person.   The  petitioners refused  to accept the notice and the  Magistrate  thereupon adjourned the case to the following, day and remained,  them to jail when the petitioners declined to offer bail. On  the following day (August 10, 1970) the case  was  again adjourned  to  August 17, 1970.  Since then  the  case,  has stood  ,adjourned as the petition in this Court was  pending and  the petitioners were in the custody of this Court.   As the   remand  was  not  extended  by  the  Magistrate,   the petitioners became free from custody and we declared them to be so.  After the arguments 744 concluded,  we  held  by  an order  that  detention  of  the petitioners  from August 9, 1970 was illegal and  they  were entitled  to  be free.  Since they were not  any  longer  in detention, we were not required to make an order.  I We  now give our reasons for the order we made.



The  petitioners  were arrested by the  Police  without  a warrant  under  section  151  Criminal  Procedure  Code  for purposes of taking them before a Magistrate to be bound over under  section 107 of the Code of Criminal  Procedure.   The arrest of the petitioners being one for action under section 107  of  the Code, the provisions of Chapter  VIII  applied. The  Special Eench has analysed those provisions  critically and we need refer to them only briefly here.  The first sub- section of the section arms certain Magistrates of specified classes  with the power to require a person, who is  likely to  commit  a.breach of the peace or to disturb  the  public tranquillity  or  to do any wrongful act that  may  probably occasion  a  breach  of  the peace  or  disturb  the  public tranquillity,  to  execute a bond and furnish  security  for keeping  the peace.  The sub-section however lays down  that the  Magistrate  shall proceed "in  the  manner  hereinafter provided".   The Chapter then contains elaborate  provisions for  the procedure which the Magistrate must follow.   Since the  liberty  of  the person is  involved,  not  because  of anything  he  has  done but because of,  the  likelihood  of breach   of   the  peace  or  disturbance  of   the   public tranquillity  by  reason  of  some act  on,  his  part,  the provisions must obviously ’be, strictly followed.  Since the action  is taken on the mere opinion of the Magistrate,  the provisions  of the Chapter naturally ensure that no case  of harassment arises. The  first requirement is that the Magistrate must  pass  an order  in  writing  setting forth  the  substance  of  the information received, the amount of bond to be-executed, the term  for  which  it  is to be  in  force  and  the  number, character  and  class of sureties (if  any)  required  under section  112.  This order may be passed in the  presence  of the  person to be bound over and even in his absence.   This is  clear  from  the provisions of  the  two  sections  that follow.   Section  113  deals with the  procedure  when  the person  is present in the Court.  Then the  Magistrate  must read over the order to the person and if he so desires,  the substance  of it must be explained to him.  When the  person is  not  present in Court, the next  section  applies.   The Magistrate  shall then issue a summons to him to appear  and if he is in custody, the Magistrate shall issue a warrant to the  person  who has his custody to produce him  before  the Court.  If there is need of immediate arrest of the  person, the  Magistrate on the report of the Police Officer or  upon other   information  (the  substance  of  which  report   or information 745 is to be recorded in writing by the Magistrate) may issue  a war-rant for the arrest of the person.  This action can only be  taken. if there is reason to fear that a breach of  the peace  cannot  be  prevented except by the  arrest  of  the person  (section 114).  Whenever a summons or a  warrant  is issued  under  section 114, a copy of the order  made  under section  112  must  be  sent and  delivered  to  the  person (section 115).  The Magistrate is empowered to dispense with the  personal  appearance  of the person and  allow  him  to appear by a pleader (section 116). In  all  cases where the person is present in  Court  or  is brought  there  by a warrant in the two cases  mentioned  or appears on, summons and the order under section 112 is, read over to him or sent to him with the warrant, the  Magistrate obtains  jurisdiction over the person.  He is then  required to proceed under section 117.  This section is divided  into several  sub-sections  but we are concerned  only  with  the first three ’sub-sections.  Under the first sub-section, the



Magistrate  shall proceed to enquire into the truth  of  the information  upon  which he has so far acted and  take  such further evidence as may appearing necessary.  Under the  se- cond  sub-section the enquiry is a trial and  the  procedure applicable to the trial and recording of evidence in summons cases is enjoined. Under the third sub-section, a power  has been  conferred on the Magistrate to ask for a bond with  of without  sureties to keep the peace and be of good  behavior pending  the completion of the enquiry.  This power is  used if  the  Magistrate considers that  immediate  measures  are necessary  for  prevention  of  a breach  of  the  peace  or disturbance of the public tranquillity or the commission  of any  offence or for the public safety.  He does so for  rea- sons  to be recorded in writing and if the person  does  not execute such bond, the Magistrate is empowered to detain him in  custody  till  the bond is executed or  the  enquiry  is concluded.   The  rest of the provisions of the  section  as also  of  the Chapter need not be mentioned,  for  the  case never went beyond this stage when the petitioner became free by reason of the expiry of the remand’ Order. The  matter arose on two reports said to have been  made  to the  Magistrate.  The first was by one Brij Mohan, s/o  Shri Ulhas Mistry of Lahirtara.  His report was made at 9.15 A.M. on  August  9,  1970.  In this report, he  has  stated  that members  of  the  Samyukta Socialist  Party  ’and  Samajvadi Yuvjan  Sabha  were  indulging  in  violent  activities  and inflammatory  speeches, that their leader Madhu  Limaye  and his companions were arriving in Varanasi and with their help the parties would indulge in further looting and destruction in  Courts and other places as a result of’ which there  was danger  to  the life and property of general  public.   This report was entered in the general diary of, Police Station, 7 46 Cantorunent in Varanasi.  After the report was entered it is noted  Brij Mohan went away.  The second report was made  at 9.30  A.M. at the same Police Station by Sub  Inspector  Ved Murti Bhatt.  In this report also it is stated that the  two parties above mentioned were indulging in violent activities and  had damaged and looted th Radio Station at Sarnath  and the  P.T.I.  Teleprinter.  It is stated  that  after  ’their leaders  Madhu Limaye, Ram Adhar Giri, Narender Shastri  and their   companions   reached  Varanasi,   there   would   be destructive  activities and looting in the Courts and  other places  in ’the City find grabbing of the lands  of  others. There  was  therefore apprehension of  violent,  destructive activ ities.  There was a fear in the general public and  an imminent danger of breach of the peace.  Between  these  two reports came the arrest by  the  police under  section  151 of Criminal Procedure Code,  without a warrant from the.  Magistrate.  In fact no proceedings under section  107  were  drawn  up  before  the  arrest  of   the petitioners.  They were arrested first and then taken to the Court by the Police with a view to being ’bound over.   When the petitioners arrived in Court, the Magistrate drew up the Order under section 112 and read it over to the petitioners. They were asked to, sign the Order which they refused to  do and Madhu Limaye and Ram Adhar Giri made a complaint.   They were  not statements on the merits of the case but a  minute of  what  had  happened  to  them  after  their  arrival  at Varanasi.   The notice under section 112 which was given  to them  stated  briefly that a report was  received  from  the Police Station Cantonment, Varanasi that the two petitioners were acting in such a manner "which gives an impression that there is an apprehension of danger to the life and  property of general public, causing damage to public property and  to



occupy it unlawfully also".  That there was "an apprehension to breach of the peace on ’account of their activities"  and that  there were sufficient grounds to take  action.   After the above notice was read over and was refused to be  signed by  the  petitioners,  the Magistrate passed  an  order  ad- journing the case to which we shall refer presently. Before the action was taken, a report was made to the Magis- trate by Shiv Narain Saxena, In-charge of the Police Station Cantonment in which it was stated as follows               "Sir,               It  is  requested  that  there  was  immediate               apprehension  of  breach  of  peace  from  the               aforesaid persons.  Therefore, arrest was made               under   section   151  Cr.P.C.  There   is   a               likelihood of breach of peace by them in               7 4 7               future.   Therefore, it is requested  that  in               order to maintain peace they should be  bound               down   under   section  107/117   Cr.P.C.   on               furnishing suitable bail and muchalkas.               Sd/- Shiv Narain Saxena S.O.               9-8-70" Under this report were names of six witnesses including Brij Mohan and five Police Officers. The  Magistrate  recorded a short order  after  the  public prosecutor  moved  him by a request in  writing  for  action under section 107   of the Code of Criminal Procedure.  That Order was as follows :               "I have seen the police report dt. 9-8-70  and               I  am satisfied that there is an  apprehension               of  breach  of peace and  public  tranquillity               from  the side of O.Ps. Nos. 1 and 2  who  are               active members of S.S.P. engaged in land  grab               movement and wrongful acts to public  property               and in my opinion there are sufficient grounds               for   proceeding  u/s  107  Cr.P.C.  for   the               prevention  of  breach  of  peace  and  public               tranquillity.  A notice u/s 112 Cr.  P.C.  has               been  read  over to O.Ps. Nos. 1  &  2  today,               calling  upon  them  to show  cause  why  they               should  not be ordered to execute  a  personal               bond  of Rs. 5,000 with two reliable  sureties               each in the like amount for keeping peace  for               a period of one year.  As regards O.P. No.  3,               the  S.O. Cantt. could not satisfy  the  court               when queststioned orally as to who he was  and               what was his address.  In my opinion there  is               no  necessity of taking any evidence  on  this               point  later  on.  In view of this  I  am  not               satisfied  that  there is an  apprehension  of               breach  of peace and public tranquillity  from               O.P. No. 3. Accordingly, I discharge him.  Fix               on 10-8-70 for statements of O.Ps Nos. 1 & 2.               Sd/- (Mohinder Singh)               City Magistrate, 1st Class, Varanasi               9-8-70" It will be noticed that before the Magistrate took action to call  for  an interim bond, he did not make any  efforts  to enquire into the truth of the information as is required  by sec. 117(3) of the Code.  He only saw the Police report  and was  satisfied  from it, without even questioning  the  Sub- Inspector.  He did question him 748 with  regard  to Narender Shastri pho is  described  in  the order  as  O.P.  No. 3 but not others.  It  is  also  to  be



noticed  that  the case was fixed on the following  day  for statements  of Madhu Limaye and Ram Adhar Giri and there  is no  mention that any witnesses were to be present.  In  fact even  on the next day the Magistrate was not going  to  try the case but only take statements from the petitioners.   On the  following day there was a report by the  Sub  Inspector which reads as follows :               "It is requested that Shri Madhu Limaye,  M.P.               was sent to Jail on 9-8-70 under section  151,               107/117  Cr.  P.C. and his case is to come  up               for  hearing in your Honourable  Court  today,               the   10-18-70.   The  programme  of   causing               destruction and land grabbing is being carried               out  by  the Samyukta Socialist Patty  in  the               City  of Varanasi and its rural areas.   Force               has been deployed on duty.  On account of  the               hearing  of  the case ’of Shri  Madhu  Limaye,               M.P.,  in the Court, there is a likelihood  of               hindrance in the administrative arrangement.               There is a great expectation of disturbance of               peace.  In these circumstance, it is requested               that the Court proceedings may be held in Jail               so  that situation may remain  under  control.               Report is submitted.               Sd/-  Shiv-Narain  Saxena.   Incharge   Police               Station Cant.,               Varanasi, 10-8-70".               The Magistrate ordered on this "Kept on File".               That  day the Magistrate passed  the  folowing               Order               "Let the case be registered.  I have seen  the               Police report dated 10-8-70 regarding  holding               of  proceedings against O.Ps. No. 1 and  2  in               District  Jail instead of the court.   In  the               interest  of  peace  and  public  tranquillity               these   proceedings  will  be  taken  in   the               District  Jail itself.  As I am too busy  with               the  law and order duty in the city,  it  will               not be possible to take ’up the proceedings in               District  Jail today.  Let it be fixed in  the               District  Jail on 17-8-70.  OPs were  informed               in Jail.               Sd Mohinder Singh               10-8-70" 749 Again there was no order to keep the witnesses ready on  the 17 th. It  appears  therefore that the Magistrate used  the  powers under section 117(3) without commencing to enquire into  the truth  of the information.  No sworn statement of  any  kind was  obtained  by  him and be adjourned the  cases  for  the examination   of  the  petitioners  without  summoning   the witnesses in support of the information.  He, however, asked the petitioners to furnish an interim bond or go to jail. It  appears to us that the powers of the Magistrate  to  ask for  an  interim bond were (not properly exercised  in  this case  and  consequently  the order  to  the  petitioners  to furnish interim bond could not be made.  That stage had  not been  reached  under  the scheme of  the  Code  of  Criminal Procedure.   The  Magistrate could only ask for  an  interim bond  if he could not ’complete the enquiry and  during  the completion of the enquiry’ postulates a commencement of  the enquiry, which means commencing of a trial according to the summons  procedure.  It was not given to the  Magistrate  to postpone  the  case  and  hear  no  body  and  yet  ask  the



petitioners  to  furnish  a  bond  for  good  conduct.   The Magistrate  should have made at least some effort to, get  a statement from Brij Mohan or) Ved Murti Bhatt or any of  the witnesses  named in the challan.  Nothing of this  kind  was done.   Therefore the proceedings for asking for an  interim bond were completely illegal. Learned  Counsel for the State attempted to put  the  matter under  various sections of the Code of  Criminal  Procedure. He relied on section 344 or in the alternative on section 91 or in the alternative again on section 167. He  was  groping for some support from another part  of  the Code.   Those sections have been dealt with by  the  Special Bench  and held inapplicable to the facts of a  trial  under Chapter VIII which contains its own elaborate procedure  for trial of a suspected person.  It is not possible to overlook those  provisions,  which  the Legislature  has  with  great emphasis  specified  for the trial of such cases.   In  fact section  91 applies to a person who is present in Court  and is free because it speaks of his being bound over, to appear on another day before the Court.  That shows that the person must  ’be  a free agent whether to appear or  not.   If  the person    is  already under arrest and in custody, ’as  were the petitioners, their appearance depended not on their  own volition,  but on the volition of the person who  had  their custody.   This section was therefore inappropriate and  the ruling cited in support of the case were wrongly decided  as was held by the Special Bench.  Similarly section 344  deals with the adjournment of a case.  It is not a substitute  for section 117(3).  Section 117(3) presumes 75 0 that  unless the person is bound over, he would be  able  to perpetrate  that  act, which causes an apprehension  of  the breach of peace.  It is not necessary to take a bond from  a person who is already in detention and is-not released.  The danger  arises  when the man is free and not when he  is  in custody.  It is to prevent his acting that the bond is taken or  he is kept in custody till he gives the  bond.   Section 344  deals with ordinary adjournment of a case and allows  a person to be admitted to bail or the court to remand him  if he  is  in  custody.   This  is  not  the  case  here.   The petitioners were brought under the process of Chapter  VIII. They  were  read  over an order under  section  112  and  if interim  bonds were required from them the Magistrate  ought to  have entered upon the enquiry and satisfied himself,  at least,  prima facie, about the truth of the  information  in relation to the alleged facts.  Without making any  enquiry, neither  could the Magistrate, order the petitioners  to  be detained in custody nor require them to execute a bond  with or without surety. It is quite clear that the Magistrate was too much in hurry. He had not read the law to inform himself about what he  was to do. Having the petitioners before him and having read  to them  the order under section 112 it was his duty either  to release  them  unconditionally  or to ask them  to  give  an interim bond for good conduct but only after he has  started inquiring-  into the truth of ha in-formation.  It  was  for this  reason  that we held that the Magistrate did  not  act according  to the law and his action ’after August 9,  1970 in  detaining the petitioners in custody was  illegal.,,  As the  petitioners  had already become free by reason  of  the remand having expired, we declared them to be free. V.P.S.                             Detention held illegal. 7 5 1