J- ^, p ^ ^;f^3 fF" ^ r?:7a "^ CT <f?;f^ ^v^U: 1-^MM IN THE HIGH COURT OF CHHATTISGARHLAT BILASPUR (C.G.) W.P. (2271 N0. l5c^5' /2010 PETITIONER: ^ Cl46^~rftfp^<^t-ni-^ RESPONDENTS: &^ (^F^f^J^q^i-) ^^- ^^y ^'w ..••''' ^ t, •' <y- Bts^ Pardeshi Ram Banjare Aged about 57 years S/o Tijram Banjare R/o Qr. No. CH/173 Katainaar P.S. Bankimongara District Korba (C.G.) VERSUS 1. State of Chhattisgarh Through Station House Officer^ Police Station Bankimongra^ District Korba (C.G.) 2. The Executive Magistrate Katghora, district Korba (CG) 3. Parmeshwar Singh Rathore Head Constable^ Police Station Bankimongra^ Dista-ict Korba (C.G.) 4. Mahesh Kumar Sharma Asst. Sub Inspector Police Station Bankimongra^ District Korba (C.G.) 5. The Superintendent of Police^ District Korba (C.G.) WRIT PETITION UNDBR ARTICLE 227 OF THE CONSTITUTION OF INDIA ,<^/- ^,-^y ^w x ^ . ^s i i i^- HIGHCOURT OF CHHATTISGARH ATBILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra WntPetition 1227) No. 1595^010 PETITIONER : Pardeshi RamBanjare Versus RESPONDENTS : , State of Chhattisgarh and others Ai?£earance: Shri Brijesh Singh and Shri Sushobhit Smgh,counsel for the petitioner. Shri R.R. Smha, Panel Lawyer for1;he State/respondents 2and5. Shri Pawan Kesharwani, counsel for respondents No.3 and 4. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTrTUTIONOFINDIA ORALORDER (15.02.2011) Petitioner has called iri question fhe order passed by the ExecutiveMagistrate, Katghora, District Korba in exercise of powers under section 106, 116 (3)and 151 ofCr.P.C; By the said order Annexure P-1, petitioner has-been directed to furnish personal bond for a sum of Rs.5000/- to maintain peace for a period of six months. The proceeding was initiated by the concerned Executive Magistrate on the Istagasha submitted by Police Station, Bankimongra. Retum has been filed by the State as well as respondents No.3 and 4. (2) When the leamed counsel for the petitioner was confronted with the question as to why a proceeding as contemplated under section 123 ofthe code ofCr.P.C. caiinotbe filed to seekquashment ofthe impugned order, leamed counsel would submit that in view of lavv laid down by the Hon'ble Supreme Court in case of Madhu ,,^^^^ •yysa' ^<^.. -z ^ Umaye and another Vs. Ved Murti and others 1970 (3) SCC 738, D.K. Basu Vs. State of West Bengal AIR 1997 SC 610,Babulal and another Vs. State of M.P. 1991 CRLJ 786 MP and Vasantkumar Jivrambhai Majithia Vs. State ofMaharashtra and another 2006 CRI.L.J. 1135 passing of cyclostyle order by the ExecutiveMagistrate reflects non application ofmind and therefore the order is per se illegal. He would submit that such practice has been deprecated by the courts. (3) In the case of Madhu Limaye and another Vs. Ved Murti and others the matter was submitted directly before the Supreme Court because the constitutional validity of Section 144 of Cr.P.C. was under challenge.. Inthe matter ofD.K. Basu Vs. State ofWest Bengal, a PIL was submitted by the Executing Chairman ofWest Bengal, Legal Aid Services in form ofa letter addressed to Hon'?ble ChiefJustice oflndia.in two other matters also rendered by the High Court of M.P. and High Court of Munibai the question as to availability ofalternative remedy in fonn offiling a proceeding under Section 123 ofCr.P.C has not been considered and adjudicated. (4) Section 123 (1) (2) and (3) of Cr.P.C is reproduced herein for ready reference: "123. Power to release persons imprisoned for failing to give secunty- (1) Whenever the District Magistrate in the case ofan order passed by an Executive Magistrate under section 117, or tfie Chief Judicial Magistrate;in any other case is of opinion fhat ^' ytrt..^ '^•^yr K' t'^^', ^.^ -3- ^ l'v (5) any person imprisoned for failing to givesecurity under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged. (2) Whenever aay person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other Court, tfae District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case, may make an order reducing the amount ofthe security or the number of sureties or the time for which security has been required. (3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts: Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired. It is also to be seen that the impugned order was passed on 23/02/2010 directingthe petitioner to fumish bond to maintain peace for a period ofsix months. The said period ofsix months has already expired in the month ofAugust 2010. (6) In the present petition petiti6ner,in addition of seeking quashment of the order Annexure P-1, petitioner faas prayed for a direction to the respondents to comply vvith the guidelines laid down by the Supreme Court in the case of D.K. Basu Vs. State of West / Bengal and has also prayed for award ofcompensation. •^^^."^, :]N^^ • "^' 1^^ps^' ^ -^J ?s^,^^ ^ (7) Needless to say fhat every subordinate lawenforcmg agencies as well as hierarchy ofcourts constituted under fhe Code ofCriminal Procedure are expected and duty bond to complythe law made by the Parliament as well as law laid down by the Hon'ble Supreme Court and no separate direction in this regard is required. (8) Since the prayer for quashment of order Annexure P- 1 can be adjudicated before the competent Court under sectionl23 of Cr.P.C., the petitioner may prefer appropriate proceedings along with an application for condonation of delay. Question regarding grant of compensation cannot be detennined in this proceedmgs in view of material fiimished by the State along with its retum and the petitioner, ifheis so advised, may file a duly constituted civil suit wherein the tssue regarding malicious prosecution shall be dealt with by giving opportunity to both the parties to lead evidence. (9) With this observation the instant petition is disposed of. ^ Q^ Sd/- PrashantKumarMishra Judgc :'1: