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Kadir Ali Dewan And Others v. Wahab Ali And Others Opposite Parties.
Factual and Procedural Background
Four opposite parties, for themselves and on behalf of 31 other families, filed an application supported by affidavit in the Criminal Court at Mangaldoi against the present petitioners under Section 107 Cr. P.C. They alleged that the first party obtained settlement of land measuring 272B. 4k. 14 Lechas in the name of 35 families in 1972, that they had been cultivating the land since, and that the second party (the petitioners) were, by forming an unlawful assembly, preparing to oust and evict the first party, threatening dire consequences and creating a likelihood of breach of the peace. The application sought investigation and, under Section 107 Cr. P.C., issuance of a bond to prevent the second party men from entering the land.
On 7-10-1978 the Executive Magistrate, Mangaldoi, registered M/C Case No. 749/78 under Section 107 Cr. P.C., being satisfied there was a likelihood of breach of the peace, and issued non-bailable warrants of arrest against all the petitioners. On 17-10-1978 Petitioner No. 1 was produced under arrest and moved a bail petition; the Magistrate called for a police report as to likelihood of breach of peace if bail were granted. On 19-10-1978 bail was allowed to Petitioner No. 1 on Rs. 5,000 and the Magistrate ordered execution of an ad-interim bond with two sureties to refrain from any illegal act likely to cause breach of the peace; the bail bond and ad-interim bond were accepted the same date.
The petitioners filed a Criminal Revision (under Sections 397/401 read with Section 482 of the Cr. P.C., as described in the opinion) challenging the proceeding and the orders, principally on the ground that provisions of Sections 111, 113, 114 and 116 of the Cr. P.C., 1973, were not complied with, resulting in a grave miscarriage of justice, and prayed for quashing of the proceedings. No one appeared for the opposite parties and no counter-affidavit was filed.
Legal Issues Presented
- Whether the proceeding under Section 107 Cr. P.C. in M/C Case No. 749/78 complied with the mandatory procedural requirements of Sections 111, 113, 114 and 116 of the Code of Criminal Procedure, 1973.
- Whether a matter arising out of a dispute over land is properly triable under Section 107 Cr. P.C. or whether proceedings in such cases should be initiated under Section 145 Cr. P.C.
- Whether, given the facts and the magistrate's actions (issuance of non-bailable warrants and ordering execution of an ad-interim bond), the impugned proceedings were liable to be quashed.
Arguments of the Parties
Petitioners' Arguments
- The proceedings (including issuance of non-bailable warrants and the order for execution of ad-interim bond) did not comply with the mandatory provisions of Sections 111, 113, 114 and 116 of the Cr. P.C., 1973.
- Non-compliance with these procedural provisions resulted in a grave miscarriage of justice and therefore the proceedings in M/C Case No. 749/78 should be quashed.
Opposite Parties' Position
No opposite party appeared in court and no counter-affidavit was filed; the opinion therefore contains no detailed account of the opposite parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1973 Cri LJ 1516 (Gau) | Section 107 Cr. P.C. does not provide for decision of land disputes; proceedings under Section 107 concerning land disputes are an abuse of process and the proper procedure is under Section 145 Cr. P.C. | Used as a guiding precedent to conclude that where the apprehended breach arises from a land dispute, proceedings under Section 107 are inappropriate and Section 145 should be followed. |
| 1975 Cri LJ 1088 (Gau) | Where there is likelihood of breach of peace in a land dispute, the proper procedure is under Section 145 and not Section 107; proceedings under Section 107 in such circumstances are bad in law. | Reinforced the proposition that land-dispute related apprehensions of breach of peace should be handled under Section 145; supported quashing of Section 107 proceedings in land-dispute contexts. |
| 1978 Cri LJ NOC 273 (Kant) | An order in compliance with Section 111 is the foundation of proceedings under Section 107 and related sections; a show-cause notice must state particulars required by Section 111, and failure to do so renders the order invalid. | Cited to emphasize that the magistrate must comply with Section 111's particulars when issuing notices/warrants and that failure to do so invalidates the proceedings. |
| 1977 Cri LJ 1344 (Cal) / AIR 1953 Cal 109 | The show-cause notice must contain the definite particulars prescribed in Section 111. | Applied to stress that the notice gives the person proceeded against the opportunity to show cause and that omission of prescribed particulars vitiates proceedings. |
| AIR 1965 Tripura 20 | Unless an opportunity is given to show cause, proceedings will be liable to be quashed. | Relied upon to underline the necessity of giving the person proceeded against a proper opportunity to show cause under Section 111. |
| Criminal Misc. Case No. 89 of 1974 (unreported) | Where an order did not set forth required particulars under Section 111 and an interim bond was taken before commencement of inquiry, the interim bond was illegal and without jurisdiction. | Cited as a factual illustration and authority that taking an interim bond before commencing inquiry and without complying with Section 111 is illegal; used to support quashing in the instant case. |
| Madhu Limaye v. Ved Murti (1970) 3 SCC 739 : AIR 1971 SC 2481 | A magistrate may direct execution of an interim bond only after commencing inquiry into the truth of the information by examining some witnesses; the interim bond cannot be imposed before actual commencement of inquiry. No local inspection behind parties' backs is permissible prior to commencement. | Adopted as binding Division Bench precedent establishing that execution of an interim bond must follow the commencement of inquiry (witness examination); applied to find the magistrate's order invalid for being premature. |
| Madhu Limaye v. S.D.M. Monghyr (1970) 3 SCC 746 : AIR 1971 SC 2486 | Same principle as above concerning the illegality of ordering interim bond before commencement of inquiry and the limitations on local inspection before notice to parties. | Used in tandem with the other Madhu Limaye authority to demonstrate that the magistrate erred by ordering bonds before inquiry commenced; considered binding and influential on the court's conclusion. |
| (1943) 47 Cal WN 731 | Section 107 can be misused and may act as an engine of injustice and oppression; where misused proceedings may be quashed. | Cited to support the observation that Section 107 must be properly used and that misuse justifies quashing the proceedings. |
| 1978 Cri LJ 1066 (Pat) | The phrase "in the manner hereinafter provided" in Section 107 is essential; the magistrate must follow the manner laid down in Section 111 and cannot invent a manner of his own. | Referenced to stress the mandatory character of the procedure prescribed by Section 111 when initiating Section 107 proceedings. |
Court's Reasoning and Analysis
The court framed the principal legal question as whether the impugned proceedings complied with the statutory scheme for Section 107 cases, specifically the requirements of Sections 111, 113, 114 and 116 of the Cr. P.C., and whether non-compliance warranted quashing. The court proceeded through the following analytical steps, based strictly on the content of the opinion:
- The court noted that when an apprehended breach of peace arises from a dispute over land, established guidance (cited Gauhati decisions) requires that such disputes be handled under Section 145 Cr. P.C. and not Section 107, because Section 107 is not intended to decide land title or possession disputes.
- If the apprehension is not land-related, Section 107 may be resorted to; but even then the magistrate must be satisfied that Section 107 is necessary, record reasons for that satisfaction, and then issue the notice contemplated by Section 111. The court emphasized that an order in compliance with Section 111 is the foundation of any Section 107 proceeding.
- The court explained the mandatory content of Section 111 (substance of information received, amount/term of bond, number/character/class of sureties) and the ancillary requirements of Sections 113 and 114 (issuance of summons/warrants and delivery of a copy of the order with the summons/warrant). It stressed that the show-cause notice must contain definite particulars and that the person proceeded against must be given an opportunity to show cause; absence of such opportunity renders proceedings vulnerable to quashing.
- With respect to interim bonds, the court relied on the Madhu Limaye authorities and related authorities to hold that a magistrate may direct execution of an interim bond only after he has commenced an inquiry into the truth of the information (i.e., after examining some witnesses). The execution of the bond is described as the penultimate stage of the proceeding under Section 116(3), permissible only "pending the completion of the inquiry" and for reasons recorded in writing.
- Applying these principles to the facts, the court found: (a) the present matter was not a proper case for proceeding under Section 107 because the apprehension sprang from a land dispute; and (b) the learned magistrate misdirected himself at every stage by failing to comply with Sections 111, 113, 114 and 116 — issuing non-bailable warrants without complying with Section 111 and ordering execution of an ad-interim bond without complying with Section 116. The court noted previous instances where similar departures from the statutory procedure led to quashing.
On this basis the court concluded that the proceedings had resulted in injustice and were liable to be quashed.
Holding and Implications
Holding: The court quashed the proceeding in M/C Case No. 749/78 (the Section 107 Cr. P.C. proceeding) and allowed the petitioners' criminal revision. The Rule was made absolute and the petition was allowed.
Implications:
- The direct effect is that the impugned Section 107 proceedings (including the non-bailable warrants and the ad-interim bond order) stand quashed as being procedurally and substantively improper in the circumstances described in the opinion.
- The decision rests upon the court's application of existing precedents and statutory requirements; the opinion does not purport to lay down a novel legal doctrine or to state that it is creating a new precedent beyond applying and following the authorities cited.
1. By this Criminal Revision under Sections 397/401 read with S. 482 of the Cr. P.C 23 petitioners challenge the proceeding in No. 749/78, which arose as follows:— 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.
2. 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.”
3. 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 1st 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.”
4. 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 ad-interim 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.
5. 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.
6. 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.
7. 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 likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
(2) Proceedings under this Section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.
111. Order to be made:— When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the 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.
113. Summons or warrant in case of person not so present:— If such person is not present in Court, the Magistrate shall issue a summons requirinng him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court:
Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.
114. Copy of order to accompany summons or warrant:— Every summons or warrant issued under Section 113 shall be accompanied by a copy of the order made, under Section 111, and such copy shall be delivered by the Officer serving or executing such summons or warrant to the person served with, or arrested under, the same.”
8. Section 116 then provides—
“Inquiry as to truth of information: — (1) When an order under Sec. 111 has been read or explained under Section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.
(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases.
(3) Pending 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 tranquillity 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 under Section 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:”
9. The question now is whether the impugned proceeding is in conformity with the above provisions, and, if not, whether it is liable to be quashed?
10. Before initiating a proceeding under S. 107 it should be seen whether the apprehended breach of peace has arisen out of a land dispute. If it has so arisen the guideline given in 1973 Cri LJ 1516 (Gau) and 1975 Cri LJ 1088 (Gau) should be followed. In the former, Islam, J., as his Lordship then was, observed—
“S. 107, Cr. P.C does not provide for decision of any dispute with regard to land in respect to which there is possibility of the breach of the peace. Proceedings under S. 107, Cr. P.C drawn against the parties concerning dispute with regard to land, are in my opinion, an abuse of the process of the Court and the proper procedure is the proceeding under S. 145 of the Cr. P.C”.
11. In the later case his Lordship again observed—
“When there is likelihood of the breach of the peace with regard to a dispute over land, the proper procedure is to draw proceedings under Sec. 145 of the Code and not under Section 107. The impugned proceedings, therefore, are bad in law and are quashed.”
12. If the dispute creating apprehension of breach of the peace is not with respect to land then Section 107 may be resorted to. In initiating proceeding under Section 107 the Magistrate should be satisfied that there is need for such a proceeding and he should record reasons for his satisfaction and then issue the notice contemplated under Section 111 to the person sought to be bound by it. Section 107 provides when notice to show cause under Section 111 has to be issued. A proceeding under Section 107 can be initiated against a person only upon making an order in compliance with the pro visions of S. 111.
13. As was observed in 1978 Cri LJ NOC 273 (Kant) an order in compliance with the provisions of Section 111 is the foundation for the proceeding under Section 107 and the other connected Sections. A show cause notice under Section 111 should incorporate all the conditions laid down in the Section and then alone it can be construed as an order under that Section (1977 Cri LJ 1344) (Cal). Even a separate copy of Order need not necessarily accompany the notice or summons. Where a Magistrate while purporting to proceed under Section 107 issued a show cause notice to the accused as to why they should not be directed under Section 116 to execute a bond for maintenance of good behaviour instead for keeping the peace and the notice also did not state the substance of information received, the amount of the land etc. the order was held to be invalid (1978 Cri LJ NOC 273) (Kant). The notice to show cause must contain definite particulars prescribed in Section 111 (AIR 1953 Cal 109). This notice gives an opportunity to the person proceeded against. Unless an opportunity is given to show cause the proceedings will be liable to be quashed (AIR 1965 Tripura 20).
14. Section 116 contemplates inquiry as to truth of information and under sub-section (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, he may, for reasons to be recorded in writing direct the person in respect of whom the order under Section 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. Thus, the execution of the bond is the penultimate stage of the proceeding.
15. In Criminal Misc. Case No. 89 of 1974 (unreported) the order of the learned Magistrate did not fulfil the requirements of Section 111. The order had not set forth the amount of the bond to be executed, the term for which it was to be in force, and the number, character and class of sureties, in that order, as required under Section 111. The Magistrate did not commence any inquiry before he passed the order directing the petitioner and others to execute the interim bond. No witness was examined till then. He passed the order on the basis of some secret information which was passed on to him. It was held by this Hon'ble Court that the order directing the petitioner and others to execute interim bond was illegal and without jurisdiction on the face of it. It was observed that an interim bond could be taken only after the commencement and before the completion of the inquiry under Section 111(1).
16. Referring to cases of Madhu Limaye v. Ved Murti, (1970) 3 SCC 739 : AIR 1971 SC 2481 and Madhu Limaye v. S.D.M Monghyr, (1970) 3 SCC 746 : AIR 1971 SC 2486, it was held that the Magistrate could direct execution of the interim bond only after he commenced the inquiry into the truth or otherwise of the information by examining some witnesses. He could not do so before the actual inquiry commenced. Their Lordships further held:—
“There is no scope for any local inspection before the commencement of the inquiry and that too behind the back of the parties. Section 310 is the only provision in the Code providing for local inspection. Under this section local inspection can be made only for the purpose of appreciating the evidence and that can be done only after due notice to the parties. In the present case there was no scope for such local inspection as no witness was examined till then.”
17. Their Lordships in that case found that the learned Additional Deputy Commissioner misdirected himself and committed illegalities at every stage of the proceeding. The impugned proceedings as well as the impugned orders were accordingly quashed. This being a Division Bench decision is binding on us.
18. In the instant case apart from that it was not a proper case for a proceeding under Section 107, Cr. P.C I find that the learned Magistrate misdirected himself in every stage of the proceeding failing to comply with the requirements of Ss. 111, 113, 114 and 116 of the Cr. P.C in issuing non-bailable warrant of arrest without complying with Section 111, and ordering the execution of ad interim bond without complying with the provisions of Section 116.
19. It should be remembered that Section 107 may act as an engine of injustice and oppression, if it is not properly used. It is not an alternative to Section 145. Where there is misuse of the Section, the proceeding may be quashed, ((1943) 47 Cal WN 731). The Magistrate has to follow the prescribed procedure. In 1978 Cri LJ 1066 (Pat) it is aptly observed— “the words ‘in the manner hereinafter provided’ in S. 107 are essential words and the Magistrate cannot discover a manner of his own. The manner provided is clearly laid down under S. 111 of the Code.”
20. In the instant case none of the above provisions having been complied with and the proceeding having resulted in injustice, it is liable to be quashed, and it is accordingly quashed. Petition is allowed. The Rule is made absolute. Petition allowed.
21. Petition allowed.
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