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Bindeshwar Singh Alias Binda Singh v. Chandrasekhar Prasad Singh Alias Fakan Singh
Factual and Procedural Background
This revision challenges an order dated 31.12.1974 under Section 116(3) of the Code of Criminal Procedure, 1973 (the Code) directing the petitioners to execute bonds of Rs. 1,000 each with like sureties to keep the peace until the conclusion of an inquiry in a proceeding under Section 107 of the Code.
The factual matrix in the record is as follows: on 19.7.1974 an alleged physical altercation took place while earth was being cut in a field where maize crops were standing. On 20.7.1974 petitioner no. 2, Chandrashekhar Pd. Singh, filed a complaint before the Chief Judicial Magistrate, Hajipur, against Rambaran Singh and others alleging assault. On the same day Rambaran Singh filed a petition under Section 107 of the Code against seven petitioners alleging assault and threats to damage crops and remove tobacco. The Sub-divisional Magistrate initiated proceedings under Section 107 by order dated 20.7.1974 and required the petitioners to show cause by 1.8.1974.
On 26.7.1974 and again on 26.11.1974 the opposite party requested that bonds be taken from the petitioners under Section 116(3) of the Code to maintain the peace. The petitioners filed responses contesting the need for such bonds and alleging absence of any apprehension of breach of peace and lack of verification. An executive magistrate (Sri R.B. Prasad) was directed to inquire, but the record does not reflect whether his report was before the Magistrate. On 30/31.12.1974 the learned Magistrate passed the impugned order directing the petitioners to execute bonds under Section 116(3). This revision application was filed against that order.
Legal Issues Presented
- Whether an order under Section 116(3) of the Code directing persons proceeded under Section 107 to execute a bond to maintain peace until the conclusion of the inquiry is an "interlocutory order" as contemplated by sub‑section (2) of Section 397 of the Code, thereby ousting revisional jurisdiction of the High Court in respect of such orders.
- Whether the learned Magistrate had sufficient material or urgent circumstances to justify invoking Section 116(3) and directing bonds — i.e., whether the impugned order was a misuse of Section 116(3) in the factual circumstances of this case.
Arguments of the Parties
Petitioners' Arguments
- There was no material before the Magistrate to show an emergency of the kind contemplated by Section 116(3) of the Code; the order directing bonds was therefore unjustified.
- Three witnesses were examined on 28.10.1974 and one on 18.12.1974 in the Section 107 proceeding; no new material emerged by 31.12.1974 to justify immediate preventive action.
- The application for bonds was originally filed on 26.7.1974 but was not pursued for about five months; there is nothing to show any overt acts or breaches of the peace occurred in that interval.
- An executive magistrate (Sri R.B. Prasad) had been directed to inquire into the allegations; the impugned order contains no indication whether his report was received or considered. The Magistrate should have awaited or examined that report before passing the order.
- Orders under Section 116(3) are emergency measures and not to be issued as routine directions; their exceptional character means misuse in the present facts and they are liable to be set aside.
Opposite Party's Arguments
- The impugned order under Section 116(3) is an interlocutory order and therefore not amenable to revisional powers of the High Court under sub‑section (1) of Section 397 read with sub‑section (2) thereof.
- The order under Section 116(3) is separate from the order initiating Section 107 proceedings and from the final orders under Sections 117 or 118, but it has an element of finality — it operates in a manner analogous to an order under Section 117 for the limited period until conclusion of the inquiry.
- The bond form (Form No. 12) and the consequences of failure to execute the bond are the same under Sections 116(3) and 117, so treating a Section 116(3) order as interlocutory would leave the person proceeded against without an effective remedy against an illegal order.
- Reliance was placed on judicial observations (Ramgulam Choudhary v. Nawin Choudhary, AIR 1972 Patna 499) distinguishing types of interlocutory orders and indicating that some interlocutory orders decide rights or obligations and therefore may be revisable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramgulam Choudhary v. Nawin Choudhary, AIR 1972 Patna 499 | Observation that not all interlocutory orders are "a case decided" and a distinction must be drawn between interlocutory orders that adjudicate rights/obligations and those that do not. | The Court used these observations as guidance to decide whether an order under Section 116(3) of the CrPC is an interlocutory order for the purpose of Section 397(2). The Ramgulam line‑drawing approach supported the conclusion that Section 116(3) orders are not of the interlocutory kind that bars revision under Section 397(2). |
| Baldevdas Shivlal (AIR 1970 SC 406) | Referenced as a guiding principle by Ramgulam on how to distinguish interlocutory orders that amount to a decision of rights or obligations. | The Court relied on the guiding principle (as invoked in Ramgulam) to analyze the character of orders under Section 116(3) and to conclude they are not the sort of interlocutory orders excluded from revisional scrutiny under Section 397(2). |
Court's Reasoning and Analysis
The Court began by analysing the nature of an interlocutory order and the effect of sub‑section (2) of Section 397 of the Code (which limits revisional jurisdiction in respect of interlocutory orders). It considered the character and consequences of an order under Section 116(3) of the Code — an order directing a person proceeded against under Section 107 to execute a bond to maintain peace until the conclusion of the inquiry.
The reasoning proceeded with the following steps (as stated in the opinion):
- The Court noted that an order under Section 116(3) is separate from the initiating order under Section 107 and from any final order under Sections 117 or 118; it is not the final adjudication in the Section 107 proceeding.
- Despite not being the final order of the proceeding, such an order has an element of finality because it operates (for the relevant limited period) in a manner similar to an order under Section 117: the bond remains operative until the conclusion of the inquiry and identical Form No. 12 is used, with the same consequences on failure to execute the bond.
- The Court recognised the practical effect of a Section 116(3) order — if an illegal order under that provision were to be treated as interlocutory for the purpose of Section 397(2), the person affected would be left without an effective remedy despite the order being as operative as an order passed under Section 107.
- Those considerations were examined in the light of judicial guidance from Ramgulam Choudhary (and the Supreme Court principle in Baldevdas Shivlal), which instructs drawing a line between orders that decide rights/obligations and those which do not, and treating some interlocutory orders as effectively deciding rights.
- Applying that analysis, the Court concluded that orders under Section 116(3) are not the type of interlocutory orders that fall within the non‑revisable category contemplated by Section 397(2). Consequently, High Court revisional jurisdiction can be exercised over such orders when there is manifest and patent injustice calling for redress.
The Court therefore addressed both the jurisdictional question (whether it could entertain the revision) and, by allowing the petition, remedied the grievance in this specific case. The opinion does not set out a detailed step‑by‑step factual re‑evaluation of the evidence led in the Section 107 inquiry, but the Court's reasoning focuses on the nature of Section 116(3) orders and the availability of revisional relief.
Holding and Implications
Holding: The revision petition is allowed and the impugned order dated 31.12.1974 (the order under Section 116(3) of the CrPC directing the petitioners to execute bonds) is set aside.
Implications:
- Direct effect on the parties: The specific order directing the petitioners to execute bonds under Section 116(3) was quashed and the petitioners were relieved of the obligation imposed by that order.
- On broader legal consequences: The Court held that an order under Section 116(3) of the Code directing execution of a bond to maintain peace until the conclusion of an inquiry is not an interlocutory order in the sense contemplated by sub‑section (2) of Section 397 of the Code and therefore the High Court may exercise revisional jurisdiction in respect of such orders when satisfied that there has been manifest and patent injustice requiring redress.
- The opinion does not purport to set out a comprehensive new test beyond the application of existing guidance (Ramgulam / Baldevdas) but clarifies that the non‑revisability provision of Section 397(2) does not preclude High Court interference with Section 116(3) orders in appropriate cases.
petition allowed.
C.N Tiwary, J.:— This revision application is directed against an order, dated 31.12.1974 passed under Section 116(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), by which the petitioners have been ordered to execute bond of Rs. 1000/- each with sureties of the like amount each for keeping the peace till the conclusion of the inquiry in proceeding under Section 107 of the Code, which is pending against them.
2. It appears that petitioner no. 2 Chandrashekhar Pd. Singh filed a complaint before the Chief Judicial Magistrate, Hajipur on 20.7.74 against the opposite party Rambaran Singh and some other members of his family alleging that on 19.7.74 at 4 P.M the accused persons started cutting earth in the field of the petitioners, in which maize crops were standing and when the petitioner no. 2 Chandrashekhar Pd. Singh and petitioner no. 7 Anil Kumar Singh went to stop them from cutting the earth, the members of the opposite party along with other accused persons brutally assaulted them with Farsa, Lathi etc. The Chief Judicial Magistrate sent the complaint petition filed by petitioner no. 2 to the officer-in-charge Mahua police station for instituting case. Another complaint was filed by the wife of opposite party Rambaran Singh on 20.7.74 before the Chief Judicial Magistrate, Hajipur alleging that the petitioners were cutting the earth near the Osara of the opposite party and when she and her son Madan Prasad Singh went to stop them from cutting earth the petitioners assaulted them. The Chief Judicial Magistrate took cognizance against petitioners nos. 1, 2 and 5. Both the cases are pending. On the same day (20.7.74) opposite party Rambaran Singh filed a petition before the Sub-divisional Magistrate, Hajipur for action under Section 107 of the Code against the 7 petitioners alleging that the petitioners had assaulted him, his wife and son and that they were contemplating to damage this crops and to take away tobacco from his house. The Sub-divisional Magistrate without getting the matter enquired into started a proceeding under Section 107 of the Code against the petitioners by his order, dated 20.7.74 and directed the petitioners to show cause by 1.8.74 as to why they should not be directed to execute bond of Rs. 1000/-. with one surety of the like amount each to maintain peace.
3. On 26.7.74 the opposite party filed a petition before the Sub-divisional Magistrate for taking bond under Section 116(3) of the Code from the petitioners to maintain peace till the conclusion of the inquiry. On 1.8.74 a petition was filed on behalf of petitioner no. 2 Chandrashekhar Pd. Singh stating inter alia that there was not the slightest apprehension of breach of the peace at the hand of the petitioners and local enquiry by any authority might reveal the whole truth. It was further said that one Surendra Singh, a nephew of opposite party Rambaran Singh was working as an Assistant in the Vaishali Collect orate office and that he had got the proceeding under Section 107 of the Code started against the petitioners on a mere petition filed by the opposite party without verification of the truth of the allegations made therein. The prayer of the opposite party for taking bond from the petitioners under Section 116(3) of the Code was said to be uncalled for. It was prayed that the proceeding should be dropped. This petition was rejected by the learned Magistrate with the observation that no question of dropping the proceeding could arise till all the petitioners had appeared. On 26.11.74 another petition was filed on behalf of the opposite party in continuation of his petition, dated 26.7.74 requesting the Magistrate to take bond from the petitioners under Section 116(3) of the Code. A rejoinder, dated 27.11.74 was filed on behalf of the petitioners stating that nothing had happened after the institution of the criminal case and the counter case relating to the incident that took place on 19.7.74 and there was no necessity for taking action under Section 116(3) of the Code. It was also prayed that the opposite party should be directed to produce all the witnesses and the proceeding itself should be concluded. On 30.12.74 the learned Magistrate passed the impugned order under Section 116(3) of the Code directing the petitioners to execute bond of Rs. 1000/- with sureties to maintain peace till the conclusion of the inquiry. It is against this order that the revision application has been filed.
4. It is urged on behalf of the petitioners that there was no material before the learned Magistrate to show that emergency such as one, contemplated in Section 116(3) of the Code existed and therefore, the order directing the petitioners to execute bond under Section 116(3) of the Code to maintain peace till the conclusion of the Inquiry was not justified. Three witnesses were examined on 28.10.74 and one witness was examined on 18.12.74 in the proceeding under Section 107 of the Code in support of the allegations made in the petition dated 20.7.74 on the basis of which the proceeding had been started. There was no new material before the learned Magistrate on 31.12.74 on the basis of which it could be said that immediate measures were necessary for the prevention of a breach of the peace. As pointed out above, application for taking bond under Section 116(3) of the Code was filed on 26.7.74 It was not pressed for about 5 months and thereafter a petition, dated 26.11.74 was filed for the same purpose. There is nothing on the record to show that during the period of five months or so the petitioners committed any overt act or a breach of the peace. An executive Magistrate Sri R.B Prasad had been directed to enquire into the allegations made in the petition, dated 26.7.74 filed by the opposite party for taking bond under Section 116(3) of the Code from the petitioners. There is nothing in the impugned order to show as to whether the report was received or not. Even the opposite party Rambaran Singh does not appear to have been examined in the proceeding. The learned Magistrate should not have passed the impugned order without looking into the report called for from Sri R.B Prasad. Orders under Section 116(3) of the Code are not mere routine orders but they are urgent orders arising out of the emergency and are only justified in exceptional circumstances of an emergency. If the opposite party had been diligent and the learned Magistrate had not granted adjournments freely for production of witnesses by the opposite party, the enquiry itself would have been concluded by 31.12.74 when the learned Magistrate passed the impugned order directing the petitioners to execute bond under Section 116(3) of the Code. In the circumstances set forth above, the impugned order directing the petitioner to execute bond to maintain peace till the conclusion of the inquiry appears to be misuse of Sub-section (3) of Section 116 of the Code and is liable to be set aside.
5. It is urged on behalf of the opposite party that the impugned order, dated 31.12.74 under Section 116(3) of the Code directing the petitioners to execute bond to maintain peace till the conclusion of the inquiry is an interlocutory order and therefore, powers of revision conferred by Sub-section (1) of Section 397 of the Code cannot be exercised in relation to it in view of the provisions contained in Sub-section (2) thereof. This is a question of first impression. If the order passed under Section 116(3) of the Code is an interlocutory order, as contemplated by Sub-section (2) of Section 397 of the Code, revisional powers cannot be exercised in relation to it, even if there has been manifest injustice to the party concerned. Therefore, the question is whether an order passed under Sub-section (3) of Section 116 of the Code is an interlocutory order as contemplated by Sub-section (2) of Section 397 of the Code, Interlocutory order is a provisional or a temporary order and not a final order. The order under Section 116(3) of the Code directing the persons proceeded against to execute bond to maintain peace till the conclusion of the inquiry is an order separate from the order initiating the proceeding under Section 107 of the Code and the final order that may be passed under Section 117 or 118 of the Code. An order passed under Section 116(3) of the Code is obviously not the final order passed in the proceeding under Section 107 of the Code; but there is an element of finality in such order inasmuch as it operates just like an order passed under Section 117 of the Code for the limited period till the conclusion of the inquiry. The difference between an order under Section 116(3) of the Code and order under Section 117 of the Code is that the bond executed in pursuance of an order under Section 116(3) remains operative till the conclusion of the inquiry only, whereas the bond executed in pursuance of an order under Section 117 remains operative for the period, for which the person proceeded against is ordered to execute bond. The Form of the bond (Form no. 12) to be executed in pursuance of the orders under Section 116(3) and Section 117 of the Code is the same and the same consequences follow if the person concerned fails to execute the required bond. If an illegal order passed under Section 116(3) directing the person proceeded against under Section 107 of the Code to execute bond to maintain peace till the conclusion of the inquiry is treated as an interlocutory order contemplated by Sub-section (2) of Section 397 of the Code, the person concerned will be left with no remedy against such illegal order, which is as much as effective as an order passed under Section 107 of the Code. When an order passed under Section 116(3) of the Code is as effective as an order passed under Section 107, it cannot be treated as an interlocutory order as contemplated by Sub-section (2) of Section 397 of the Code.
6. Reliance has been placed on observations made by Untwalia, J. (as he then was) in (1) Ramgulam Choudhary v. Nawin Choudhary (AIR 1972 Patna 499). The question was whether a particular interlocutory order passed in a pending civil suit was a case decided within the meaning of Section 115 of the Code of Civil Procedure, under which High Court exercises revisional jurisdiction. His Lordships observed:—
“But all interlocutory orders, as the Supreme Court has pointed out, cannot be taken to be a case decided within the meaning of Section 115 of the Code. A line has to be drawn between two types of orders, although both of them are made during the pendency of the suit or proceeding. It has to be noticed whether a particular order is an adjudication by the trial court deciding for the purpose of a suit or proceeding some right or obligation of the parties in controversy, or whether it is an order which is not of that kind. In the light of the guiding principle laid down by the Supreme Court in the case of Baldevdas Shivlal, AIR 1970 SC 406, I may endeavour to give a few examples, to make myself clear, as to on which side of the line a particular order would lie. I would like to point out that an order in relation to interim injunction or appointing a receiver, when the case comes to this Court after the matter has been decided by the lower appellate court, or an order of stay staying the hearing of a suit or proceeding, or an order made under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, and possibly an order in relation to amendment of pleadings, could be the types of order in which it can be said that the order decides the case as it determines some right or obligation of the parties in controversy, and if there is any error of jurisdiction in that order, the High Court may interfere with it.”
7. Although those observations were made with regard to the revisional powers of the High Court under Section 115 of the Civil Procedure Code, they provide a guide line for deciding the question whether an order under Section 116(3) of the Code directing a party to execute bond would be an interlocutory order as contemplated by Sub-section (2) of Section 397 of the Code. Considering the question in the light of the aforesaid observations, it must be held that an order under Section 116(3) of the Code is not an order, to which provisions of Sub-section (2) of Section 397 of the Code may apply.
8. I am, therefore, of the view that an order under Section 116(3) of the Code directing a person proceeded against under Section 107 of the Code to execute a bond to maintain peace till the conclusion of the inquiry is not an interlocutory order as contemplated by Sub-section (2) of Section 397 of the Code and High Court may interfere with such an order when it is satisfied that there has been some manifest and patent injustice calling for redress.
9. In the result, the petition is allowed and the impugned order, dated 31.12.1974 is set aside.
petition allowed.
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