Back
2009 Supreme(P&H) 469
2009 (3) RCR(Cri) 260
IN THE HIGH COURT OF PUNJAB AND HARYANA, AT CHANDIGARH
KANWALJIT SINGH AHLUWALIA, J
Jarnail Singh - Petitioner
Versus
Khushbakht Rai Kora & Others - Respondents
Criminal Misc. No. M-5260 of 2009
Decided on : 9.3.2009
For the Petitioner:Mr.Harpreet S. Rakhra, Advocate.
The main legal point established in the judgment is the necessity for the Magistrate to strictly adhere to the procedural requirements under Sections 107, 111, and 116(3) of the Cr.P.C. before ordering interim bond or detention, emphasizing the preventive nature of Section 107 Cr.P.C. and the protection of the Executive Magistrate's actions under the Judges Protection Act, 1985 and Judicial Officers Protection Act, 1850.
Headnote:
Executive Magistrate - Remand Procedure under Cr.P.C. - Section 107, 111, 116(3) - The court examined the justifiability of the Executive Magistrate's act in remanding the petitioner to jail for four days. It highlighted the procedural requirements under Sections 107, 111, and 116(3) of the Code of Criminal Procedure (Cr.P.C.), emphasizing that the purpose of Section 107 Cr.P.C. is preventive and not punitive. The court emphasized the necessity for the Magistrate to make an inquiry and satisfy himself about the truth of the information before ordering interim bond or detention. It referenced legal provisions and previous case law to support its interpretation of the procedural requirements and concluded that the remand order was not in accordance with the law.
Fact of the Case:
The petitioner, a Functional Manager, was remanded to jail for four days by the Executive Magistrate under Section 107/151 Cr.P.C. despite the petitioner's willingness to furnish bail bonds. The petitioner filed a complaint to prosecute the Executive Magistrate, but the courts upheld the discharge of the Executive Magistrate.
Finding of the Court:
The court found that the remand order was not in accordance with the procedural requirements under Sections 107, 111, and 116(3) of the Cr.P.C. It also noted that the Executive Magistrate's actions were protected under the Judges Protection Act, 1985 and Judicial Officers Protection Act, 1850, and directed the Registrar General to hold an inquiry into the departmental proceedings against the Executive Magistrate.
Issues: The issues involved the justifiability of the Executive Magistrate's remand order, the procedural compliance under Cr.P.C., and the protection of the Executive Magistrate's actions under the Judges Protection Act, 1985 and Judicial Officers Protection Act, 1850.
Ratio Decidendi: The court emphasized the procedural requirements under Sections 107, 111, and 116(3) of the Cr.P.C., highlighting the preventive nature of Section 107 Cr.P.C. and the necessity for the Magistrate to make an inquiry before ordering interim bond or detention. It also referenced the protection of the Executive Magistrate's actions under the Judges Protection Act, 1985 and Judicial Officers Protection Act, 1850.
Final Decision: The court concluded that the remand order was not in accordance with the law and directed the Registrar General to hold an inquiry into the departmental proceedings against the Executive Magistrate.
Kanwaljit Singh Ahluwalia, J
1. The petitioner was employed as Functional Manager at District Industrial Center, Mansa. Respondent No.1 was posted as Executive Magistrate, Sardulgarh. Petitioner was produced before respondent No.1 under Section 107/151 Cr.P.C. His counsel was present along with bail bonds but the same were not accepted and petitioner was sent to jail on 18.4.2003 for a period of four days till 21.4.2003. Khushbakht Rai Kora, Sub Divisional Magistrate, Sardulgarh observed that in case petitioner is released, he can do some big misdeed. The order passed by respondent No.1 is annexed as Annexure P1 and the same read as under:-
“ORDER:-
Today, one Kalandra was produced by Sardar Trilochan Singh ASI, P.S. Sardulgarh. The Investigating Officer got recorded his statement that the opposite party who has been produced in the Court today, if he is released then he can do some big mis-deed. Inspite of the fact, that the opposite party has submitted the Jamanatnama through his counsel Sh. Sant Ram but the Investigation Officer has mentioned about the breach of peace, so, keeping in view this fact, the bail of the opposite party is declined. The opposite party/respondent be sent to Central Jail, Bathinda till 21.4.2003. On 21.4.2003, the respondent be produced before Sub Divisional Magistrate, Sardulgarh for further orders”.
2. Present petitioner had filed a complaint (Annexure P2) to prosecute Sub Divisional Magistrate Khushbakht Rai Kora respondent No.1 under Sections 219, 343, 120-B & 34 IPC. In the complaint preferred, respondent No.1 was summoned by Judicial Magistrate Ist Class, Mansa, to stand trial on 6.4.2005 under Sections 219, 343, 120-B & 34 IPC. The Sub Divisional Judicial Magistrate, Sardulgarh, on 8.6.2007, on an application filed under Section 245 Cr.P.C. held that respondent No.1 cannot be proceeded against in view of the bar of Section 197 Cr.P.C. Aggrieved against the same, petitioner had filed a revision petition which was decided by the Court of Additional Sessions Judge, Mansa, who upheld the discharge of respondent No.1.
3. This Court has to examine whether the act of Executive Magistrate, Sardulgarh, respondent No.1 in remanding the petitioner to Central Jail, Bathinda, for a period of four days is justifiable under law or not? Apparently, the Executive Magistrate, Sardulgarh, had not followed the procedure prescribed under Sections 107, 111 & 116 Cr.P.C. It become necessary to notice provisions of law before any observations are made regarding the conduct of respondent No.1 Executive Magistrate, Sardulgarh.
4. In case under Section 107 Cr.P.C., the procedure laid down in Chapter VIII of the Code of Criminal Procedure as prescribed in Sections 111 to 118 of the Chapter is to be followed.
5. A bare reading of Section 107 Cr.P.C. make it crystal clear that Magistrate has to call upon the person concerned to execute a bond with or without sureties for keeping the peace for such period. It is only when person fail to execute the bond with sureties, the Magistrate has to consider any other option. Before any person is called upon to furnish a bond with or without sureties, the Magistrate has to pass a requisite order under Section 111 Cr.P.C. Section 111 Cr.P.C. commands that the Magistrate should make an order in writing setting forth the substance of the information received, the amount of bond to be executed, the term for which it has to remain in force and the number, character and class of sureties required.
6. After the necessary order under Section 111 Cr.P.C. is passed and order has been read or explained under Section 112 Cr.P.C. to a person present in the Court, thereafter, the Magistrate has to proceed to inquire into the truth of information upon which action is to be taken or Magistrate shall take such further evidence as may appear necessary. Cases where immediate measures are required to be taken, the Magistrate can take recourse to Section 116(3) Cr.P.C. Right from the day Section 1
