{1} CWP No.382/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.382 OF 2011 Sachin s/o Madanlal Lunge PETITIONER Age-29 years, Occ-Milk Business R/o Gavali Mohalla, Juna Jalna Tq & Dist-Jalna VERSUS 1. The State of Maharashtra RESPONDENTS Through Taluka Executive Magistrate, Tahsil Office, Jalna, Dist-Jalna 2. The Police Sub Inspector, Through Police Station, Sadar Bazar, Jalna ....... Mr.G.G.Suryawanshi, Advocate for the petitioner Mrs.Yogita M.Kshirsagar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE:16 th September 2011 ORAL JUDGMENT: 1. Rule. Rule returnable forthwith. Heard finally by consent of the parties, at the stage of admission. {2} CWP No.382/2011 2. The present petition is directed against the order dated 17.03.2011 passed by Extra Ad Hoc Sessions Judge, Jalna in Criminal Revision Petition No.34/2011. By the impugned order the Extra Adhoc Sessions Judge has dismissed the revision preferred by the petitioner as none had appeared for the petitioner and thus uphold the order dated 07.02.2011 passed by Taluka Executive Magistrate, Jalna. 3. Heard learned counsel for the petitioner followed by the learned APP. Perusal of the record discloses that the petitioner had purchased one flat from one Rohini Pardeshi under the deed of conveyance dated 26.08.2011. It appears that the said deed of conveyance was in fact executed by the husband of said Rohini. It further appears that later on said Rohini has lodged a complaint against the petitioner. Pursuant to which the applicant was called upon to remain present before respondent No.1 and was directed to execute an interim bond u/s 116 (3) of the Criminal Procedure Code. Being aggrieved by the said order, the petitioner had approached the Sessions Judge, Jalna by preferring Criminal Revision Petition No.34/2011, which came to be rejected for default {3} CWP No.382/2011 so also on merits, in absence of the petitioner or his advocate. Being aggrieved by the said order, the petitioner is before this Court. 4. Learned counsel for the petitioner has urged that before taking action u/s 107 of the Criminal Procedure Code and directing the petitioner to execute bond to maintain law and order u/s 116 (3) of the Criminal Procedure Code, it was necessary for the Executive Magistrate to issue notice as contemplated u/s 111 of the Criminal Procedure Code, however without issuing the notice, the action taken u/s 107 of the Criminal Procedure Code itself is band in law. Secondly, it is urged that the Sessions Judge has dismissed the revision in absence of the advocate of the petitioner which is not permissible in law. 5. For clarity, it is necessary to quote sections 111 and 107 of the Criminal Procedure Code, which read thus- 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 tranquility or to do any wrongful act that may probably {4} CWP No.382/2011 occasion a breach of' the peace or disturb the public tranquility 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 1[with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceeding 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 tranquility 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. 6. On bare reading of these two sections, it is clear that when a Magistrate acting u/s 107, 108, 109 or 110, deems it necessary to require any person to show cause under such section shall make an order in writing, setting forth the substance of the information received, the amount of the bound to be executed, the term for which it is to be in force. Thus, it is obvious that it was mandatory for the Executive Magistrate to issue notice to the petitioner before initiating action u/s 107 of the Criminal Procedure Code. Admittedly, no show cause notice has been served {5} CWP No.382/2011 to the petitioner before initiating action u/s 107, requiring the petitioner to execute a bond u/s 116 (3) of the Criminal Procedure Code. In the premise, the action taken by the Magistrate, without issuing any notice is bad in law. 7. At this juncture, it may be useful to refer the observations of the Apex Court, in “Md. Sukur Ali V/s State of Assam” 2011 Cri.L.J. 1690. Wherein it is observed by the Apex Court that the Criminal cases, whether trial, appeal or revision, should not be decided in absence of advocate of the accused, as it violates the provisions of Articles 21, 22 and 234 of the Constitution of India r/w the provisions of section 302, 303, 374 and 401 of the Criminal Procedure Code. The Apex Court, in the said judgment, observed thus- “A criminal case should not be decided against the accused in absence of a counsel. Article 21, which guarantees protection of life and personal liberty is the most important fundamental right guaranteed by the Constitution. It is only a lawyer who is conversant with law who can properly defend and accused in a criminal case. Hence, if a criminal case is decided against an accused in the absence of a counsel, there will be violation of Article 21 if the Constitution. As such even if the counsel for the accused does not appear because of {6} CWP No.382/2011 his negligence or deliberately, even then the Court should not decide a criminal case against the accused in absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.” 8. Perusal of the impugned order clearly indicates that the same is passed against the interest of the petitioner and was passed in absence of the advocate of the petitioner. Therefore, the case of the petitioner is squarely covered by the ratio laid down by the Apex Court in the judgment cited supra. 9. Considering the fact that the action is taken by the Taluka Executive Magistrate against the petitioner without issuing notice as contemplated u/s 111 of the Criminal Procedure Code the same is required to be quashed and set aside. Similarly, the impugned order, which is passed in Criminal Revision, is passed in absence of advocate of the petitioner and hence the same also requires to be quashed and set aside. 10. Consequently, both the orders, i.e. order dated 07.02.2011 passed by Taluka Executive Magistrate, Jalna and order {7} CWP No.382/2011 dated 17.03.2011 passed by Extra Adhoc Sessions Judge, Jalna in Criminal Revision Petition No.34/2011 are hereby quashed and set aside. However, liberty is granted to the State to take action, if required, in accordance with law, after following due procedure. Rule is made absolute as indicated above. Petition is allowed accordingly. Parties to act on the authenticated copy of this judgment. [A.V.POTDAR, J.] drp/B11/cwp382-11