1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.598 OF 2009 01. Sabirkhan s/o Mahebullah Khan age 65 years, occup. business, r/o Sabir Nagar, Bhangar Bazar, Dhule Tq. and District Dhule. Petitioner. versus 1. The State of Maharashtra, through Secretary, Department of Home Ministry, 2. The Superintendent of Police, Dhule. 3. The Police Inspector of L.C.B. Dhule (also acting as Special Executive Magistrate), Dhule. 4. Police Inspector, Azad Nagar Police Station, Dhule. Respondents WITH CRIMINAL WRIT PETITION NO.599 OF 2009 01. Sabiulhasan s/o Mahebullah Khan age 45 years, occup. business, r/o Sabir Nagar, Bhangar Bazar, Dhule Tq. and District Dhule. Petitioner. versus 1. The State of Maharashtra, through Secretary, Department of Home Ministry, 2. The Superintendent of Police, Dhule. 3. The Police Inspector of L.C.B. Dhule (also acting as Special Executive Magistrate), Dhule. 2 4. Police Inspector, Azad Nagar Police Station, Dhule. Respondents ------------------------------------------------------ Shri C.R. Deshpande, Advocate, for the petitioners. Shri B.V. Wagh, A.P.P. for the Respondent - State. ------------------------------------------------------ Coram : P.R.Borkar,J. Date : 10/02/2010. ORAL JUDGMENT 01. These two writ petitions are filed by the two brothers, being aggrieved by the order passed on 28.3.2009 by the Special Executive Magistrate-Police Inspector, L.C.B., Dhule under Section 111 of the Code of Criminal Procedure, 1973, in Court Case Nos.19 and 20 of 2009 (Exhibits "C" and "D" to the respective petitions), thereby calling upon the petitioners to execute bonds of good behaviour in the sum of Rs.1.00 lakhs each as interim bonds as security for good behaviour pending chapter case filed against them under Section 110 (e) and (g) of the Cr.P.C. The petitioners seek relief of quashment of chapter proceedings initiated against them, so also order dated 28.3.2009 passed by the Special Executive Magistrate-Police Inspector, L.C.B. Dhule, calling upon them to furnish interim bonds. 3 02. Police Sub Inspectors Shri S.N. Malwal and S.H. Syed, Azad Nagar Police Station, Dhule respectively filed separate reports both dated 21.3.2009 before the Special Executive Magistrate for initiating chapter proceedings against respective petitioners in present petitions. It is alleged in both the reports that six crimes have been registered against the petitioners at Azad Nagar Police Station as reproduced below. (1) C.R.No.184/2008 for offences under Sections 302/307 IPC. (2) C.R.No.186/2008 for offences under Sections 435, 436, 143 IPC. (3) C.R.No.178/2008 for offences under Sections 307, 434, 436, 143 IPC. (4) C.R.No. 189/2008 for offences under Sections 307, 435, 436, 143 IPC. (5) C.R.No.192/2008 for offences under Sections 307, 435, 436, 143 of IPC. (6) C.R.No.293/2008 for offences under Sections 435, 436 and 147 of IPC. 03. The learned Special Executive Magistrate passed orders on 28.3.2009 under Section 111 of the Cr.P.C. and stated therein that from the statements of the witnesses recorded and the documents produced in prima facie enquiry, he was satisfied that the 4 petitioners' conduct is dangerous to the life and property of public at large and there was possibility of breach of public peace and tranquility and, therefore, pending chapter proceedings, both the petitioners were called upon to execute bonds of good behaviour in the sum of Rs.1.00 lakhs with one surety in the like amount each. Now, it is no more disputed that the interim bonds were executed by both the petitioners on 13.4.2009 and the chapter proceedings were stayed because of the orders passed on 17.8.2009 by this Court. 04. Shri C.R.Deshpande, learned Advocate for the Petitioners, submitted that the reports which culminated in the orders under Section 111 of Cr.P.C. and the copies of the FIRs produced on record, clearly show that there were only six crimes registered against both the petitioners during riots which took place at about time in October 2008. No evidence whatsoever was recorded before passing the interim order nor any opportunity of being heard was given to the petitioners. The impugned order is ex-parte. The order to execute interim bonds is nothing, but stigma on the petitioners and, therefore, the petitions be allowed and the impugned orders be set aside. 5 05. On the other hand, Shri B.V.Wagh, learned A.P.P. submitted that as stated in reply affidavit, besides above mentioned six crimes, there are other crimes registered against the petitioners at Dhule City Police Station and in all 15 crimes are registered against them which are of serious nature ranging between the period 1987 to 2008. Learned A.P.P., therefore, submitted that this is not a case wherein this court should interfere in the interim orders passed by the competent authority which are complied with by the petitioners by executing bonds. He, therefore, submitted that the chapter proceedings may be continued so that the petitioners may appear before the learned Special Executive Magistrate and show cause to the notices issued. 06. Shri C.R.Deshpande, learned Counsel for petitioners, cited several authorities. He, first relied upon the case of Mohan Khatri vs. M.G. Ingle 2004 All MR (Cri.) 68 decided by the the Single Bench of this Court. It is observed therein that asking a citizen to furnish a bond has to be taken with its proper significance. His fundamental rights should not be humiliated or molested on insufficient material and he should not be put to a social stigma or 6 embarrassment. 07. The second case cited is Chandrakant Dharni Bharmaji vs. Special Executive Magistrate, 2004 All MR (Cri.) 81. In that case, the court observed that none can be asked to furnish bond of good behaviour without an adjudication. A person cannot be asked to furnish a bond of good behaviour only because two trials alleging that he committed the murder are pending in the court. Of course, those were the observations made in the facts and circumstances of that case. It appears that the court was considering final order of furnishing bond passed under Section 110 of Cr.P.C. and not the interim order as in our case. 08. The third case relied upon is Bhumiraj Ramswami Tewar vs. Sr. Inspector of Police, 2004 All MR (Cri.) 40. In that case, word "habit" as under Section 110 of Cr.P.C. was interpreted in the context of security for good behaviour from habitual offenders. It is held that habit means not one or two instances alleged to have been committed by person or in which such person was involved. the word "habit" indicates repeated occurrence of such instance. 7 09. Case of Vasantkumar Majithia vs. State of Maharashtra 2005 All MR (Cri.) 2951 was also relied upon. The court was considering chapter proceedings under Section 107 of the Cr.P.C. It is observed that if, without recording reasons and only on the basis of non-existing evidence produced by the police, order is passed under Section 107, the same is erroneous. 10. The Division Bench of this Court in the case of Rajesh Nayak vs. State of Maharashtra 2006 (2) B Cr.C. 489 has observed in paragraphs 7 and 8 that since the power to direct security is being an interference with liberty of individual, order must reflect application of judicial mind by Magistrate and reasons entailing the order. It is observed that the reasons should be recorded in writing which should reflect application of mind to the facts and circumstances of the case before the Magistrate. Interim bond can be asked only after commencement of inquiry and before its completion, provided that the allegations forming the basis leading to the necessity of furnishing of interim bonds are tested by inquiry and judicial mind is applied for ascertaining whether there is prima facie justifiable basis for such a direction. There must be a case of emergency and 8 there should not be mere reliance on police report without calling the police officer in the witness box. It is also observed that the amount of bond should not be more than a sum for which there is fair probability of being able to find security. Practice of insisting a cross-surety was deprecated. 11. In the case of Surendra Ramchandra Taori vs. State of Maharashtra, 2001 All MR (Cri.) 2079, which is a Division Bench judgment of this court, vesting of powers of Executive Magistrate in Police Inspector is deprecated. 12. Lalookhan vs. M.M. Kamble 1996 Cri.L.J.801, is a case wherein it is observed that the proof that the person is habitual offender is available only after he is found guilty of the charges levelled against him. In my considered opinion, this ruling does not take into consideration Section 116(4) of the Cr.P.C. Perhaps that provision was not brought to the notice of the Single Bench. 13. Lastly, learned Advocate Shri C.R.Deshpande relied upon the case of Parvatibai Bhaurao Gaikwad vs. State of Maharashtra 2003 All MR (Cri.) 1645. The 9 Division Bench observed that the powers under Sections 107 to 110 of the Cr.P.C. have to be exercised only in case of serious nature and not in cases involving trivial quarrels. Such powers are not to be used as vehicle for private vendetta, nor should those be allowed to be exploited to settle the score in politics. Proceedings under Section 107 are not to be understood as regular trial of a case for commission of offence. 14. On the other hand, Shri B.V. Wagh, learned A.P.P., relied upon Full Bench judgment of Orissa High Court in Sona Khan vs. State 1981 Cri.L.J. 39. It is observed, after referring to the Supreme Court Cases, that the bare allegations cannot form foundation for order of bond and failing to furnish it detention of the delinquent. The allegations have got to be tested. It may be that in a particular case, or a evidence may not be necessary to test the truth or otherwise of the allegations. Affidavits may be enough. There may be documentary evidence which might substitute oral evidence which necessitates examination of witness. Parties may agree that the allegations are true and, therefore, there may not be any necessity of looking for evidence. Situations 10 arising in daily life cannot be catalogued and discretion must be left to the Magistrate to deal with particular situations as may arise before him in different cases. 15. In the present case, in the orders passed under Section 111 of the Cr.P.C. by the learned Special Executive Magistrate, it is specifically stated that after considering nature of the offences registered against both the petitioners and after considering the statements of the witnesses recorded, he was prima facie satisfied that it was a case where petitioners pose danger to the life and property of the public at large and there was likelihood of breach of public peace at the hands of the petitioners. 16. The learned A.P.P. Shri Wagh drew my attention to reply affidavit indicating that besides the offences registered against the petitioners at Azad Nagar Police Station, Dhule which formed the basis for issuance of notice under Section 111 of Cr.P.C., there were other offences registered against the petitioners at other police stations at Dhule which show continuous conduct of the petitioners. It is necessary to refer to Section 116(3) and (4) of the 11 Code of Criminal Procedure. "116. Inquiry as to truth of information. (1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (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 tranquility 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. Provided that- (a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour; (b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in order under section 111. (4) For the purpose of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be provided by evidence of general repute or otherwise." 12 17. The above-said provisions make it clear that interim bond can be directed to be executed only in proceedings under Section 108, 109 or under Section 110 of Cr.P.C. and this can be done the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety. Such order will have to record the reasons in writing. Sub-Section (4) of Section 116 speaks that for the purpose of the section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be provided by evidence of general repute or otherwise. Therefore, it is not necessary that there must be a conviction. The habit and conduct of the delinquent can be gathered even from general repute or otherwise. In my considered opinion, the words "or otherwise" appearing in sub-section(4) are wide to include other modes of holding that the person's conduct is dangerous to the public safety and public tranquility. So, pending crimes can also be taken into consideration for the purpose of Section 116. What should be the value of the same is a matter to be considered after evidence 13 is recorded during proceedings. It all depends upon facts and circumstances of the case, whether a particular case would come within four corners of Section 110 of Cr.P.C. 18. Considering the reply affidavit in this case, in my view, this is not a case requiring interference in the exercise of extra-ordinary jurisdiction of this Court under Articles 226/227 of the Constitution. It is made clear that the above observations are prima facie opinion and the learned Magistrate shall not get influenced by the same and he shall apply his mind independently to the evidence that would be led in the inquiry. 19. With clarification regarding observations as above, Writ Petitions stand dismissed. Rule discharged. pnd/criap598.09 (P.R.BORKAR, J.)