Full Judgment Text
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PETITIONER:
MADHU LIMAYE & ANR.
Vs.
RESPONDENT:
VED MURTI & ORS.
DATE OF JUDGMENT:
28/10/1970
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
VAIDYIALINGAM, C.A.
RAY, A.N.
DUA, I.D.
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]
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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.
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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.
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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
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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
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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
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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
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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
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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
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