The necessity of affording an opportunity to the petitioner to be heard and the importance of following the requirements of Section 116(3) of the Code, which mandates that the Magistrate must record reasons for satisfaction to call upon the opposite parties to execute interim bonds.

JUDGMENT :

B.K. Behera, J. - This application under Sections 401 and 482 of the Code of Criminal Procedure (for short, the Code) has been directed against the order dated 13-5-1982 passed by the Executive Magistrate, Chatrapur, recalling an order made u/s 116(3) of the Code earlier on the same day against the opposite parties for execution of bonds. The Executive Magistrate had passed the following order:

A.P.P. along with Advocate for 1st party present. Delinquents are absent on repeated call. Their Advocate is also absent. They have not taken steps. Issue notice to the bailor why his bail bonds shall not be forfeited on default. The delinquents have not filed counter for further allegation of overt act. It appears they do not object to this allegation of overt act. They are directed to furnish interim bond during pendency of this proceeding u/s 116(3) of the Code of Criminal Procedure.

Case to 17-6-1982.

The learned Magistrate recalled the above order thus:

Later

13-5-l982 The Advocate for the delinquents appea red and filed petition stating his difficulties in attending the court late. He has prayed to recall the orders passed today. He also filed counter the petition u/s 116(3), Code of Criminal Procedure, I heard him. Orders recalled. Case to 17-6-1982 for hearing as before. First Party informed.

2. As has rightly been submitted by the learned Counsel for the Petitioner, the impugned order had been passed without affording an opportunity to the Petitioner of being heard on the application made by the opposite parties and without even serving a copy of the application on him. No party should be condemned unheard, therefore, feel that to prevent an abuse of the process of the court, this Court should, in exercise of its powers u/s 482 of the Code, set at naught this order and I would accordingly allow the application in revision and set aside this order.

3. While examining this record, it has come to my notice that the earlier order passed for execution of interim bonds u/s 116(3) of the Code was in flagrant violation of the provisions of Section 116(3) of the Code which provides:

(3) 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 u/s 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:

Provided that-

(a) no person against whom proceedings are not being taken u/s 108, Section 109, or Section 110 shall be directed to execute a bond for maintaining good behaviour:

(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous tlian those specified in the order u/s 111.

As rightly submitted by the learned Counsel for the opposite parties at the stage of hearing this revision, the order directing execution of interim bonds u/s 116(3) of the Code would show that the learned Executive Magistrate had not properly applied his mind and had not kept in view the requirements of Section 116(3) of the Code. As has been laid down by a Full Bench of this Court in Sona Khan and Others Vs. State of Orissa, the Magistrate has to make a genuine attempt to test the correctness of the allegations and judicial mind has to be applied and procedure known to law has to be followed for testing the correctness of the allegations and finding out how much thereof is factual. The factual basis must be the foundation for the judicial satisfaction that an order for a bond under Sub-section