S.S. AHMAD, J.
(1.) This is a petition under Article 226 of the Constitution in the nature of habeas corpus by which the petitioner has challenged his detention in the District Jail, Lucknow.
(2.) Notice of this petition was issued to the opposite parties vide order dated 6th January, 198b to the following effect :-
"Let a copy of this petition be supplied to the Govt. Advocate today who represents opposite parties nos.1 to 11. Put up this petition for orders on 7-1-86. Opposite parties are directed to produce the petitioner in Court on 7-1-86. Let a copy of this order be communicated to the District Magistrate, Lucknow, Senior Superintendent of Police, Lucknow, Superintendant of Police, Lucknow, City Magistrate, Lucknow and the Superintendent District Jail, Lucknow."
The Sub-Divisional Magistrate, Lucknow has appeared in person before us and has produced the original record from which the following tacts emerged :- (a) On 3rd January, 1986 a report was submitted by Sri Bhup Singh, Inspector Incharge Police Station Qaiserbagh at 4.30 P.M.. that the petitioner along with 34 others including Ram Chandra Misra, Sunil Kumar Singh, Ramendra Verma, Kuldip Singh, Ahsan Abbas and Vishambhar Singh had been making inflammatory speeches within the precincts of the Collectorate, Lucknow. Abuses were hurled at the employees of the Collectorate and the lawyers present there were exhorted by the petitioner and his associates to assault the employees and chase them away. The employees had collected in another portion of the Collectorate lawn. They were obecting to the use of abusive language by the lawyers, the destruction of the Government property and the " marpit " resorted to by the lawyers. The officers who were also present at the spot tried to pacify the employees who concluded their meeting but the petitioner and his associates did not pay any heed and continued to deliver inflammatory speeches over the microphone as a result of which a tension was generated and the situation became explosive. The City Magistrate declared the assembly of the lawyers illegal and asked them to leave the place. They refused and then they were arrested under Section 151 CrPC. (b) That report was placed before the Sub-Divisional Magistrate, Lucknow on 4th January, 1986 and he passed the following order :- I am satisfied from the report that there is apprehension of breach of peace. Let a case be registered under Section 107 CrPC against opposite parties ana proceedings initiated against them. " (c) Thereafter an order against the above persons was passed by the Magistrate under Sections 107/111 CrPC, It will be useful to reproduce this order in its entirety :- Thana Adhyaksh Kasierbagh ki chalani report dinank 3-1-86 dwara mujhe pratit karaya gaya hai ki uprokt vipashigan dinank 3-1-86 ko samai lagbhag 4.30 baje sain collectory kutchery ke prangan me loud speaker lagakar pradarshan kar rahe the tatha collectorate ke karmachariyon ke virudh apshabdon ka pravog kar rahe the aur Shri Prakash Avasthi va unke sathi vakla sahban collectorate ke karmachariyon ko mar kar bhaga dene hetu lalkar rahe the jisese stithi atyant tanaopurna ho gai aur vipakashigan ki ore se puri shanti bhang hone ke sambhawana utpan ho gai. Mai uprokt police report se santusth hun ke uprokt vipakshigan ke ore se shanti bhang hone ki sambhawana hai. Atha mai A. K. Singh Pargana Magistrate Lucknow etat dwara ukta vipakshigan ko nirdesh deta hun ke we sandarshit karen ke kuy na ek varsh tak janparishanthi banye rakhney hetu unsey 2000/- ka vayaktigat bandhnama tatha etmhi dhanrashi ke do-do prathibhu liye jayen. Aaj dinank 4-1-1986 ko mere dwara hastakchar evum navalaya ki mudra se prasarit keya gaya. Hastakchar 4-1-1986 Time 1.45 A.M. [ A. K. Singh ] Pargana Magistrate, Lucknow Adesh vipakshigan ko parhkar sunaya tatha samjhaya gaya. Hastakchar 4-1-1986 Time 1.45 A.M. [A. K. Singh] Pargana Magistrate, Lucknow. (d) It is said that this order was read out to the above persons many of whom had signed on the margin of the order in token of their having read it but two of the endorsements, one made by the petitioner and the other by one of his colleagues may be reproduced below :-
" 4 1/2 baje griftar kiya gaya tatha mauke par 144 lagane ki ghoshna ke gai. Sabha ko gair kanune ghoshit karne ka natak keya gaya tatha os samaya Shri A. K. Singh, Shri Trivedi sabhi maujud the. Koye Apattijanak nare addi nahi lagaye. Notice ke tathya galat hai. Shri R. N. Trivedi ke khilaf bhrashtachar ka andolan chal raha hai tatha C. M. ko smrit patra ek din diya gaya tha.
Hastakchar [ Prakash Awasthi ] At 2 P.M.
" Shri Maan ji police line manoranjan kaksh me notice 2 baje rat me sunaye gaye tatha do jamanat va muchelke dakhil karne ka adesh hua jiska prabandh es samya bona asambhava hai. Hastakchar [ A. Abbas ] (c) By the above order the petitioner was required to show cause why he should not be required to furnish a personal bond of Rs. 2000/- and two sureties each in the like amount for keeping peace for one year. (f) It is not disputed by the Sub-Divisional Magistrate who is present in person that this order was passed at Police Lines at 1.45 A.M. (g) Shortly thereafter the Sub-Divisional Magistrate recorded the statement of the Inspector lncharge, Sri Bhup Singh, which may at be reproduced in its entirity :- " Dinank 3-1-86 ko vipakshi no. 1, 7, 8, 17, 23, 31, 35 ke virudh anya vipakshiyon ke sath chalani report dhara 107/106, Da. Pra. Sa. ke antargat bheji gai hai. Vipakshi no. 1, 7, 8, 17, 23, 31 tatha 35 ke virudh dinank 3-1-86 ko thana Kaiserbagh par collectorate Lucknow me tor phord tatha marpit ke vardat ke adhar par pratham suchna report bhe ankit ke gai thee. Ukta vipakshi sesh vipakshiyon ke aguvayee kar rahe hai aur es bat ki puri sambhawana hai ke agar vipakshi no 1, 7, 8, 17, 23, 31 tatha 35 ko dauran karyawahi shanti banaye rakhene ke liye pabandba na kiya gaya to ye turant shanti bhang kara sakte hain. Atha vipakshi no 1, 7, 8, 17, 23, 31 tatha 35 ko dauran karyawahi shanti banye raknne ke liye paband kiya jai. Vipakshiyon ne jiraha nahi ke. Parhkar tasdik kiya. Hastakchar 4-1-1986 "
(h) Thereafter the Magistrate passed an order under Section 116 (3) CrPC to the following effect :- Adesh Aaj dinank 4-1-86 ko thana Adhyksh Kaiserbagh ke report dinank 3-1-86 se is bat ki santushthi hone par ke vipakshi no. 1 se 35 tak se shanti bhang hone ki sambhwana hai, unke virudh dhara 107/116 Da. Pra. Sa. ke antargat karyavahee prarambha ke gai Uneh dharaa 111 CrPC ke antargat notice parkhar sunyai gai. Sabhi vipakshiyon ne shanti bhang hone ke sambhawana sey in kar kiya. Prabhari Nirikshak Kaiserbagh thana ke bayan dinank 4-l-8b ko ankit kiya gaya. Apne ba>an mem unobone kaha hai ke vipakshi Sarva Shri Prakash Awasthi, Ram Chandra Misra, Sunil Kumar Singh, Ramendra Varma, Kuldeep Singh, Ehsan Abbas tatha Vishambhar Singh shesh vipakshiyon kl aguvayee kar rahe hai aur unhe shanti bhang karne ke liya lagatar uksa tahe hain. Unke virudh thana Kaiserbagh mai dinank 3-1-86 ko pratham suchana report ankit ke gai hai jismen collectorate Lucknow me tor-phord tatha marpit keya jane ke karan unke virudh mukadma apradh sankhya 5/86 kayam kiya gaya. Prabhari Nirikshak ne es bat ki ashanka vyakt kiya ke in vipakshiyon ko dauran karyawahee shanti banye rakhne ke liya paband na kiya gaya to turant shanti bhang ho sakti hai. Mai Prabhari Nirikshak ke bayan se santust hun ke lok shanti banye rakhne ke liya turant karyawahee kiya jana avashyak hai aur es pusthi se in vipakshiyon ko dauran karyavahee shanti banye rakhne ke liye paband kiya jana upyukta hai. Athah adesh dia jata hai ke vipakshigan Sarva Shri Prakash Awasthi, Ram Chandra Misra, Sunil Kumar Singh, Ramendra Verma, Sardar Kuldeep Singh, Ehsan Abbas tatha Vishambhar Singh, dauran karyavahee shanti banye rakhne ke liya pratake Mublig 2000/- rupaya do hajar ka vyaktigat bandhnama tatha etni he dhanrashi ke do-do jamanate dakhil karien. Jab tak ukta vipakashigan bandhname tatha muchelka dakhil na karam tab tak unhe zila karagar mein nirudh rakha jayaga. Hastakchar 4-1-86 [ A. K. Singh ] Pargana Magistrate, Lucknow
(3.) It is on the basis of the above orders that the opposite parties have tried to justify the detention of the petitioner.
(4.) An action under Section 107 of the Code of Criminal Procedure can be initiated by an Executive Magistrate on the information that the 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. Sub- section (1) of Section 107 of the Code may be quoted below :-
' 107 (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 hereafter provided, require such person to show cause why he should not be ordered to execute a bond for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. "
(5.) The provisions quoted above require the person proceeded against to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping peace for such period, not exceeding one year, as the Magistrate thinks fit. The manner in which the Magistrate is to proceed in the matter has been indicated in the subsequent provisions of the Code to whieh a reference shall be presently made.
(6.) Section 111 of the Code of Criminal Procedure lays down as under :-
" 111. 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."
section 112 of the code provides as under :-
" 112. If the person in respect of whom such order is made is present in Court, it shall be read over to him, or if he so desires, the substance thereof shall be explained to him."
Sub-sections (1), (2) and (3) of Section 116 of the Code provide as under :-
" 116 (1) When an order under Section 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 warrants, 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) 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 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."
(7.) Section 117 (relevant portion) provides as under :-
" 117. If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the enquiry is make should execute a bond, with or without sureties, the Magistrate shall make an order accordingly."
The procedure indicated above has to be followed by the Magistrate in deciding the case under sections 107/117 of the code. This procedure cannot be ignored or departed from.
(8.) The Magistrate, as pointed out above, had. in the instant case, passed an order under Section 111 CrPC calling upon the petitioner to show cause why he should not be required to furnish necessary bonds for keeping peace for one year, as pointed out earlier this order was passed at Police Lines at 1.45 A.M. on 4th January, 1986 when the petitioner had already been arrested under Section 151, CrPC. Police Lines where the petitioner was brought after his arrest under Section 151 CrPC is admittedly not the usual place where the Sub-Divisional Magistrate holds his Court. section 327 of the code provides as under :-
" 327. The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them : Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court."
(9.) A Court has to be an open court to which the public generally may have access. It is a fundamental principle of law that every court should be open to every citizen. Publicity is the authentic hallmark of judicial as distinct from administative procedure. See Mc.Pherson v. Mc.Pherson, AIR 1936 PC 246.
(10.) The proviso to Section 327, which has been extracted above, can be invoked in appropriate cases and Presiding Judge or a Magistrate can exclude the public or any particular person from the court room or the building used by it. It is also true that there is nothing in the court to compel a Magistrate to hold his court in the usual court premises. Ordinarily the trial or enquiry has to be held in the usual court room but the magistrate may, in exceptional circumstances, hold the trial at any other place including jail premises. The section gives wide discretion to the magistrate to hold a trial at a place other than the usual court room. If, however, he decides to hold the trial in a premises other than the usual court house he should pass an order directing that the enquiry or trial would be held at that place and must in that order record his reasons for not holding the trial at the usual place. The Magistrate has to keep in mind that the place where the enquiry or trial is held must be an open court where the public as such has a right to attend. This is all the more necessary so that legal aid may be readily available to the person who is sought to be prosecuted or against whom criminal proceedings are drawn up. A person cannot be deprived of his liberty except by due process of law. This is guaranteed by Article 21 of the Constitution. This Article also contemplates that the person, who is undergoing criminal trial, is allowed the freedom of being defended by a lawyer of his choice.
(11.) The petitioner and his associates, who were brought to the police lines after their arrest under Section 151 CrPC, were, no doubt, lawyers but like a doctor (medical practitioner) who does not cure himself but consults another doctor, a lawyer seldom handles his own personal brief for fear of spoiling it under emotional stress in a situation where reason alone can provide the remedy.
(12.) The Sub-Divisional Magistrate, who is present in court, has not indicated nor is there anything on the record to indicate the reasons for his going to the Police Lines after mid-night t0 hold the proceedings there. He, as pointed out earlier, passed the order under Section 111 at the Police Lines and invoked the provisions of section 112. i. e.,he read out the order to the petitioner who was treated by him to be present in Court forgetting that it was not the petitioner who was present in Court but the Court itself had gone to him in the dead of night. As a matter of fact, the Magistrate should not have taken recourse to the provisions of Section 112 of the Code but he should have proceeded under Section 113 which requires that if the person concerned is not present in court, the magistrate shall issue a summons requiring 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. Section 114 of the Code of Criminal Procedure requires that every summons or warrant issued under Section 113 shall be accompanied by a copy of the order made u/Section.111 of the Code. Such copy has to be delivered to the person concerned against whom the proceedings under Section 107 CrPC have been drawn up.
(13.) Section 111 of the Code contemplates an opportunity to be given to the person concerned against the order which is proposed to be made against him u/Sec.116/117 CrPC. This opportunity has to be an effective opportunity. As noted earlier, a few minutes after the order under section 111 of the code was passed the Magistrate proceeded to record the statement of the Inspector Incharge and then passed the order under Section 116 (3) CrPC for an interim bond.
(14.) The learned Magistrate, while passing an order for an interim bond under Section 116 (3), had absolutely forgotten that the petitioner was already under detention. As observed by the Supreme Court in Madhu Limaye v. Ved Murti, AIR 1971 SC 2481
" Section 117(3) presumes 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."
(15.) Section 117 (3) of the old Code now corresponds to Section 116 (3).
(16.) In the instant case, as pointed out earlier, the Magistrate demanded an interim bond from the petitioner who was already in custody. In view of the above Supreme Court decision there was no occasion for the Magistrate to demand an interim bond from the petitioner. The order passed under Section 116 (3), therefore, cannot be sustained.
(17.) The proceedings could not but be said to have been held in post haste to justify the detention of the petitioner in jail. The very purpose of the provisions contained in Sections 111 and 116 of the Code have been frustrated by the manner in which the Magistrate conducted the case in the dead of night at Police Lines, which, as observed earlier, was not the Court building. We cannot appreciate the procedure adopted by the Magistrate in the instant case and have no hesitation in holding that the entire proceedings were illegal. As observed by the Supreme Court in Madhav Hayawadanrao Hoskot v. State Of Maharashtra., AIR 1978 SC 1548 :-
" Procedure which deals with the modalties of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus understood ' procedure ' must rule out anything arbitrary, freakish or bizarre."
(18.) The manner in which the present proceedings have been conducted against the petitioner, the procedure adopted and the place chosen by the Magistrate do not inspire confidence and we are of the positive opinion that the petitioner's detention for his failure to supply interim bonds, which were illegally demanded from him, is bad. That being so, the various orders passed by the Magistrate under the Code of Criminal Procedure cannnot be sustained. In this view of the matter the detention of the petitioner becomes illegal.
(19.) We, therefore, allow the petition and quash the orders passed by the Magistrate in the proceedings under Section 107/116 (3) CrPC and direct that the petitioner shall be released forthwith unless his detention is reqiured in connection with some other case. Petition allowed.
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