1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINALWRIT PETITION NO. 852 OF 2009 Abhijit s/o Sundarrao Pandit ..Petitioner versus The State of Maharashtra & anr. ..Respondents WITH CRIMINALWRIT PETITION NO. 853 OF 2009 Vijaysinha s/o Shivajirao Pandit ..Petitioner versus The State of Maharashtra & anr. ..Respondents AND CRIMINALWRIT PETITION NO. 854 OF 2009 Amarsinh s/o Shivajirao Pandit ..Petitioner versus The State of Maharashtra & anr. ..Respondents 2 ..... Shri R.N.Dhorde, advocate holding for Shri R.L.Kute, advocate for the petitioners Shri B.J.Sonwane, APP for the respondent/State ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 15th September, 2009 J U D G M E N T : (Per Naresh H. Patil, J.) 1 Rule. Rule made returnable forthwith. With consent of the learned counsel for the parties these petitions are taken up for final hearing. 2 The petitioners have challenged a show cause cum impugned orders issued under Section 111 of the Criminal Procedure Code by the Executive Magistrate/Police Inspector, Local Crime Branch, Beed. learned counsel Shri R.N.Dhorde while arguing this group of petitions submitted that these alleged show cause cum impugned orders are passed in gross violation of provisions of law. The authority concerned had passed these orders which are misconceived and suffer from non-application of 3 mind. In the submission of the learned counsel, the provisions of Chapter VIII of the Criminal Procedure Code relating to Section 106 onwards stipulate clearly the provisions of law under which Executive Magistrate could resort to provisions of securing bond from the person for peace or for good behaviour. 3 The learned counsel for the petitioners placed reliance on a reported judgment of Division Bench of this court (Coram : J.N.Patel & B.P.Dharmadhikari, JJ.), 2006 ALL MR (Cri) 1861 [Rajesh s/o Suryabhan Nayak vs State of Maharashtra & Ors.]. 4 The learned A.P.P. Shri B.J.Sonwane submitted that the power of the Executive Magistrate for initiating action in issuance of show cause under Chapter VIII of the Criminal Procedure Code cannot be questioned by the petitioner. If the Executive Magistrate or the police authorities, in a given fact situation, are of the view to initiate proceedings regarding securing bond of peace or good behaviour from a person concerned, then they are entitled to initiate such action. Accordingly, the Executive Magistrate, who happens to be the police officer, looking to the criminal cases filed against the petitioners issued appropriate orders of show cause under Section 111 of the Criminal Procedure Code. 4 5 We have perused all the impugned orders of the petitioners. We are not convinced to appreciate the conditions of execution of bonds which the petitioners were asked to furnish. For instance, one of the conditions was that the petitioner would furnish a bond from Class I Government servant and a bond executed by a Government servant belonging to reserved class. 6 In the light of the provisions of Chapter VIII of the Criminal Procedure, prescribed procedure was not followed by the Executive Magistrate in this case. While dealing with the powers of the Executive Magistrate initiated under Chapter VIII of the Criminal Procedure Code, the Division Bench in the case of Rajesh Suryabhan Nayak, cited supra, observed as under :- “ Though the incidents of the various proceedings under Sections 106 to 110 of the Code differ in material respects, there is one aspect, namely, that all these proceedings have for their object – the prevention, and not punishment of a crime. The other common aspect of all these proceedings is that they are not obligatory but confer the discretionary power on the specified court or magistrate to exercise such power in the specified circumstance being an interference with the liberty of the individual, such power must be exercised judicially, and strictly in accordance with the procedure laid down in the relevant sections. The Magistrate must first himself consider that immediate measures are necessary for the prevention of the breach of the peace or the 5 disturbance of the public tranquility or the commission of any offence or for the public safety and then after recording his reasons in writing, direct the person concerned to execute a bond for keeping the peace, etc. until the conclusion of the enquiry. This postulates application of his judicial mind by the Magistrate, whose order is subject to judicial scrutiny by superior Courts of Revision and superintendence. .......... .............. ............. ............ However, summary the proceedings under Chapter VIII, Cr.P.C., may be considered, they are judicial proceedings and have to be conducted in accordance with the Code and the Magistrate holding these proceedings must see that the fundamental elements of the judicial process find expression in the machinery for administering justice. It is clear that an order under sub-section (3) of Section 116 of the Code for furnishing of bond can be made only after the commencement of the enquiry and before its completion, provided the allegations forming the basis of the parent proceeding or the allegations leading to the necessity for 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. “ 7 Considering the import and purpose of the provisions mentioned under Chapter VIII of Criminal Procedure Code, we find that the impugned notices/orders issued by the Executive Magistrate are required to be quashed and set aside. We observe that the authorities concerned, if so desire, are entitled to resort to the provisions under Chapter VIII of the Criminal Procedure Code strictly in accordance with law and by adopting the appropriate procedure as provided in law. We also observe that 6 the authorities concerned should bear in mind that the amount of the surety demanded for executing the bond should be reasonable, so that the order passed is executable reasonably and the person concerned is in a position to execute the bond. This view was also adopted by the Division Bench of this court in the case of Rajesh Suryabhan Nayak, supra. We clarify that we have not expressed any opinion on the merits of the matter. 8 The petitions are allowed. The impugned orders in these writ petitions are quashed and set aside. Rule is made absolute accordingly. 9 Authenticated copy of this order be provided to the parties. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crwp852.09