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GAUHATI HIGH COURT
K. N. SAIKIA, J.
KADIR ALI DEWAN AND OTHERS
VERSUS
WAHAB ALI AND OTHERS
Criminal Revn. No. 184 of 1978,
Decided on : 12 -4 -1979.
CRIMINAL REVISION - SECTION 107, 111, 112, 113, 114, 116 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 145 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - LAND DISPUTE - BREACH OF PEACE - SECURITY FOR KEEPING THE PEACE - PROCEDURE - COMPLIANCE WITH STATUTORY PROVISIONS - QUASHING OF PROCEEDINGS.
Fact of the Case:
The petitioners challenged the proceedings initiated against them under Section 107 of the Code of Criminal Procedure, 1973, alleging that the provisions of Sections 111, 113, 114, and 116 of the Code were not complied with, resulting in a grave miscarriage of justice.
Finding of the Court:
The court found that the Magistrate had misdirected himself in every stage of the proceeding by failing to comply with the requirements of Sections 111, 113, 114, and 116 of the Code of Criminal Procedure, 1973, in issuing a non-bailable warrant of arrest without complying with Section 111 and ordering the execution of an ad interim bond without complying with the provisions of Section 116.
Issues: 1. Whether the proceeding under Section 107 of the Code of Criminal Procedure, 1973, was initiated in compliance with the statutory provisions? 2. Whether the Magistrate had the authority to issue a non-bailable warrant of arrest without complying with Section 111 of the Code? 3. Whether the Magistrate could order the execution of an ad interim bond without complying with the provisions of Section 116 of the Code?
Ratio Decidendi: 1. The court held that Section 107 of the Code of Criminal Procedure, 1973, cannot be used as an alternative to Section 145 of the Code in cases of land disputes, and that proceedings under Section 107 drawn against parties concerning disputes with regard to land are an abuse of the process of the Court. 2. The court emphasized the importance of complying with the provisions of Sections 111, 113, 114, and 116 of the Code of Criminal Procedure, 1973, in initiating proceedings under Section 107 and held that a show cause notice under Section 111 must incorporate all the conditions laid down in the Section. 3. The court held that the Magistrate could not direct the execution of an interim bond before the commencement of the inquiry under Section 111(1) and that local inspection could only be made for the purpose of appreciating the evidence after due notice to the parties.
Final Decision: The court allowed the petition, quashed the impugned proceedings, and made the Rule absolute.
By this Criminal Revision under Sections 397/401 read with S. 482 of the Cr. P. C. 23 petitioners challenge the proceeding in M/s. No. 749/78, which arose as follows:-
2. The 4 Opposite Parties for themselves and on behalf of 31 other families filed an application, supported by an affidavit, in the Criminal Court at Mangaldoi against the present petitioners under Section 107 Cr. P. C. alleging that the first party got settlement of land measuring 272B. 4k. 14 Lechas in the name of 35 families in 1972 as landless people and have since been cultivating the same, and the second party by forming an unlawful assembly were preparing to oust and evict the first party threatening with dire consequences, and consequently there was every likelihood of breach of the peace and so there was the need to prevent the second party men from entering the land to avoid mutual fight. It was accordingly, prayed that the matter be investigated into and under Section 107 Cr. P. C, after issue of non-bailable warrant of arrest, make the second party men execute a bond to maintain peace and good behaviour.
3. On 7-10-78 the Executive Magistrate, Mangaldoi being satisfied that there was likelihood of breach of peace registered M/C. Case No. 749/78 under Sec. 107 Cr. P. C. and issued non-bailable warrant of arrest against all the petitioners. The said Order, rendered into English, read as follows :-
"7-10-78- Seen the petition of the First Party and also the affidavit. Heard the learned Advocate. I am satisfied that there is every likelihood of breach of peace between the parties.
So, a case under Section 107 Cr. P. C. has been registered and issue Non-bailable warrant of arrest against all the second party men. Fix 25-10-78.
Sd/- J. C. Dutta,
Magistrate (Executive),
Mangaldoi."
4. On 17-10-78 the Petitioner No. 1 being arrested moved a bail petition to which the Opposite Parties filed an objection, and the learned Magistrate (Ex) called for a report from the police fixing 20-10-78. The said order rendered into English, is as under:-
"17-10-78- 2nd Party Kadir Ali Dewan has been produced before me under arrest.
Heard both the parties. 2nd Party has moved a petition for bail and Ist Party has filed an objection. Call for a report from the police to the effect that whether there is likelihood of any breach of peace if the second party is released on bail. Police to submit report at an early date. D/- 20-10-78.
Sd/- J. C. Dutta,
Magistrate (Ex.),
Mangaldoi."
5. On 19-10-78 another bail petition of petitioner No. 1 was moved and bail was allowed for Rs. 5,000/-. The Petitioner No. 1 was further ordered to execute an adinterim bond, with two sureties, to the effect that he would refrain from doing any possible illegal act which was likely to cause breach of peace. The Order dated 19-10-78, rendered into English, reads:-
"19-10-78- Seen the Petition of the Second Party and also heard. The Second Party is allowed to go on bail of Rupees 5,000/- The Second Party will execute an ad interim bond with two sureties to the effect that he will refrain from doing any possible illegal act and undertake to refrain from doing any act which is likely to cause breach of peace till disposal of this Case.
Sd/- J. C. Dutta.
Magistrate (Ex).
Mangaldoi.
6. On the same date the bail bond and the ad-interim bond were accepted by the learned Magistrate. Hence, this application for quashing the proceeding.
7. The learned Counsel appearing for the petitioners attacks the proceeding, including the orders, mainly on the ground that the provisions of Sections 111, 113, 114 and 116 of the Cr. P. C., 1973, have not been complied with and this has resulted in grave miscarriage of justice; and he prays that the proceeding be quashed. Nobody appears for the Opposite Parties. No Counter Affidavit has been filed.
8. Sections 107, 111, 112 and 114 of the Code may be quoted here.
"107. Security for keeping the peace in other cases:- (1) When an Executive Magistrate receives information that any person is lik
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