2006 Supreme(Bom) 861

IN THE HIGH COURT OF BOMBAY
(J. N. Patel and B. P. Dharmadhikari, JJ.)
RAJESH s/o SURYABHAN NAYAK - Petitioner.
vs.
ST ATE OF MAHARASHTRA and others - Respondents.
Advocates Appeared
For petitioner: R. M. Daga with Mrs. R. A. Wasnik
For respondents: Smt. Neeta Jog, Addl. Public Prosecutor In Cri. W. P. No. 293 of 2003 :
For petitioners: Firdos Mirza, A. K. Somani, S. Khalid and Anil Mardikar
For State: S. Y. Deopujari. Addl. Public Prosecutor

Headnote:Criminal Procedure Code, 1973 - Sections 107, 108, 109, 110, 111 and 116 Constitution of India, Articles 20, 21, 237 and 226 Procedural irregularities Alleged ulterior motives and threatening of accused Power available has to be exercised as per specific provisions in specified circumstances Judicial mind to be exercised Order passed leaving blanks to be filled in later Can be passed only if sufficient information is available. It is clear that an order under sub-section (3) of Section 116 of the Code for furnishing of bond can be made only after the commencement of the enquiry and before its completion, provided the allegations forming the basis of the parent proceeding or the allegations leading to the necessity for furnishing of interim bonds are tested by inquiry and judicial mind is applied for ascertaining whether there is prima facie justifiable basis for such a direction. Sub-section (2) of Section 116 provides that the inquiry is to be as nearly as practicable in the manner prescribed for conducting trial and recording of evidence in summons cases. Chapter XX of the Code makes provision for trial of summons cases. Until the allegations are supported by materials so as to satisfy the judicial mind that a direction for bond is called for, no order for furnishing of a bond can be given. Section 116 of the Code of 1973 corresponds to Section 117 of the Code of 1898, sub-sections (6) and (7) of the 1973 Code are new provision. Old sub-section (3) commenced with "pending the completion of the enquiry". The new sub-section (3), however, starts with "after the commencement and before the completion of the enquiry". This change has been made so as to put the matter beyond doubt that an interim bond can be called for only after commencement of the enquiry and before its completion. The amendment gives effect to the Supreme Court’s decision in Madhu Limaye v. Sub Divisional Magistrate Momghyr, AIR 1971 SC 2481.

       The next important aspect, which has come to our knowledge by examining various record and proceeding s from the file of the Executive Magistrate is the manner in which orders are passed under Section 111 and Section 116(3) of the Code. Court shocked and surprised to note that so far as the Executive Magistrate of Kotwali Division is concerned, the Special Executive Magistrate has got a printed form incorporating both the orders leaving certain margins so as to fill in the blanks/gaps which only go to indicate that the two orders are passed in a rigid manner without application of mind. Court afraid but have no hesitation to observe that this practice and procedure is probably followed by all the Executive Magistrates, who are Police Officers of the rank of the Assistant Commissioner of Police functioning in their respective Division throughout the city of Nagpur. The Additional Public Prosecutor on seeking instructions has made a statement that this practice would be discontinued forthwith. Court may remind the Presiding Officers of the Courts of Executive Magistrates that both the orders i.e. 1. Under Section 111 and other under Section 116(3) of the Code has to be passed by the Magistrate on due application of mind. In so far as order under Section 111 of the Code is concerned, it enjoins upon the Magistrate to make an order in writing, setting forth the substance of information received, the amount of the bond to be executed, term for which it is to be in force, and the number, character and class of sureties (if any required) and the Magistrate can only proceed to pass an order under Section 111 of the Code on the basis of substance of the information received by him, which has to be spelt out in the order, which requires that there must be information of a nature which convinces him that there is likelihood of a breach of peace. The person, who gave information might not be in a position to give details, but the source of information might be sufficient to convince the magistrate that the breach of the peace was likely and if he was convinced, the law required him to take action. Needless to say, the substance of information must be set-forth in the order which depends in each case upon the circumstances of the case.

       Criminal Procedure Code, 1973 - Sections 107 to 116 Irregularities as observed by Court Power used by executive magistrates and police personnel’s Section 107 to 116 considered relevant Allegations of threatening alongwith detention not proper Assurance given not to repeat the same in future Decision left open to be decided by later hearing as per Apex Court directions. Grievance highlighted in his petition is that client was discouraged and deprived from engaging legal practitioner of his choice from appearing before the Court of Special Executive Magistrate, Kotwali Division is a clear cut breach of Article 22(1) of the constitution of India. The State and its functionaries should learn to respect an advocate who represents his client to seek justice for him and to assist the Court in dispensing justice. If the Courts of special Executive Magistrate and its staff finds it inconvenient, if a person engages a legal practitioner of his choice, may be for various reasons and one of them which is spelt out in the petition i.e. to come in the way of the Court and its staff extorting money from a person against whom proceedings are initiated, it not only obstructs the course of justice but also pollutes the same and is nothing short of contempt of Court.

       In the enquiry conducted by Joint Commissioner of Police, as per report the Special Executive Magistrate and its staff stands exonerated of the allegations of extortion of money though the evidence given by Advocate Nayak and his client confirms to the allegations made in the petition that a sum of Rs. 2000/were demanded from client of Advocate to settle the case rather than contest the proceedings initiated by him by engaging legal practitioner of his choice which was his legal right.

       The report cuts a very sorry figure in the manner in which proceedings are conducted in the Court of Special Executive Magistrate. Court conscious of the fact that it is very difficult to prove these allegations but it is equally true that such allegations cannot be said to be unfounded. Taking into consideration that the State and the Commissioner of Police has assured this Court that in future such occasion would not arise and they have taken necessary steps to prevent such practices, Court finds that almost all the prayers made by the petitioners are complied with and so far as claim of compensation made by the petitioner for the ill-treatment meted out to him by respondent No. 3 it can be left open and if the petitioner feels it proper, he may take appropriate steps, as observed by this Court in the case of (Deelip Bhikaji Sonawane v. State of Maharashtra, 2003 Bom CR (Cri) 1013 : 2003 (2) Mh LJ 629.

       Criminal Procedure Code, 1973 - Sections 107 and 116(3) Proceedings under Section 107. Where proceedings initiated under Section 107 of Code, no surety/security or personal bond is required to be furnished under an interim order under Section 116(3) of Code.

       Criminal Procedure Code, 1973 - Sections 110 and 116 Value of security bond Status of person to be considered It should not be an a punishment surety of a person of a religion other than that of accused is sought which is also irregular and amounts to denial of his opportunity to meet conditions of bond Amount should be reasonably fixed. It will be fruitful to mention at this stage that there is a practice on the part of Executive Magistrate for insisting upon surety from caste, creed and religion other than that of the person against whom proceedings are initiated under the nomenclature "cross surety".

       Court may like to impress upon the Executive Magistrate, exercising powers under Chapter VIII of the Code, that such insistence of cross-surety irrespective of the nature of the case is unwarranted and most of the time it is insisted upon so as to deprive a person of his personal liberty so as to make it beyond his reach to fulfil such a condition.

       This is in addition to the practice of quoting excessive and prohibitive amount as sum of surety, though clause (b) of proviso to Section 117 of the Code clearly provides that the amount of every bond shall be fixed with due regard in the circumstances of the case and shall not be excessive.

       Concept of cross-surety has to be understood in the context of the peculiar facts and circumstances of the case, which is being dealt by the Executive Magistrate. One can understand that in a given case where proceedings are initiated against persons of the rival group to give security in keeping the peace of the opposite party. It has been so ordered in criminal Writ petition No. 293 of 2003 wherein the Executive Magistrate has specified that in order to keep peace and tranquility in village Kamunj a, as there was probable and imminent danger of likelihood of breach of peace due to the rival claim and possession over the mosque Madarsa of Kamunja between two sects of Muslim namely ’Sunni’ and ’Tablig’, and hence such an order was required to be passed.