CRIMINAL MISCELLANEOUS No.4137 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. SONELAL CHOUDHARY, SON OF JAMUN CHOUDHARY 2. TUN TUN CHOUDHARY 3. PERMANAND CHOUDHARY, BOTH SONS OF SONELAL CHOUDHARY. 4. UMESH CHOUDHARY, SON OF RAMDEO CHOUDHARY 5. BISHUNI CHOUDHARY, SON OF BALESHWAR CHOUDHARY 6. NATHO CHOUDHARY, SON OF LATE JAGO CHOUDHARY 7. HARILAL CHOUDHARY, SON OF TETAR CHOUDHARY ALL RESIDENT OF VILLAGE BHARRA, P.S. BEGUSARAI, MUFFASIL, DISTRICT BEGUSARAI. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. RAM KRISHNA CHOUDHARY, SON OF LATE MANGAL CHOUDHARY, RESIDENT OF VILLAGE BHARRA,, P.S. BEGUSARAI MUFFASIL, DISTRICT BEGUSARAI. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. Pramod Manbansh, Adv. For O.P. No.2 : None For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Seven petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 8.10.1999 passed by the 4th Additional Sessions Judge, Begusarai in Cr. Appeal No.20 of 1998. By the said order, the learned Additional Sessions Judge had confirmed the order dated 5.8.1997 passed by the Executive Magistrate, Begusarai in Case 2 No.459 M of 1996. By the said order, after conducting enquiry under Section 116 of the Code of Criminal Procedure, the learned Magistrate had directed for getting a bond executed by the petitioners under Section 107 of the Code of Criminal Procedure. 2. Short fact of the case is that on the basis of a petition filed on behalf of opposite party no.2, a proceeding under Section 107 of the Code of Criminal Procedure was initiated. Earlier on the petition filed by opposite party no.2, two proceedings were initiated, which were numbered as Case No.459 M of 1996 and 683 M of 1996. After issuance of notice, the petitioners appeared before the learned Magistrate and made a prayer for amalgamating both the cases i.e. Case Nos.459 M of 1996 and 685 M of 1998 on the ground that both the proceedings were initiated for the same cause. The learned Sub Divisional Magistrate accepting the prayer made on behalf of the petitioners, who were second party in the proceeding before the Magistrate, passed an order for amalgamating the case and thereafter, Case No.683 M of 1996 was amalgamated with record of Case 3 No.459 M of 1996 and next date was fixed to 16.12.1996. On 16.12.1996, though first party had filed his attendance, none appeared on behalf of second party and as such the learned Magistrate directed for issuance of warrant of arrest and finally, by order dated 5.8.1997, after conducting enquiry under Section 116 of the Code of Criminal Procedure, the learned Magistrate was satisfied to direct the second party to execute bond of Rs.2,000/- for maintaining peace for a period of one year. 3. Aggrieved with the order dated 5.8.1997, the petitioners filed an appeal vide Cr. Appeal No.20 of 1998, which was rejected by the 4th Additional Sessions Judge, Begusarai on 8.10.1999. Against the order of rejection of appeal, the petitioners approached this Court by filing the present petition. On 14.3.2000, while issuing notice to opposite party no.2 and calling for the Lower Court Records, this Court directed that in the meantime, warrant of arrest, if not already executed, shall remain stayed and thereafter on 29.9.2000, the case was admitted for hearing. It was observed that in 4 the meantime, the stay granted earlier shall continue. 4. Despite the opposite party no.2 entered his appearance in the present case through his counsel, at the time of hearing, none appeared on his behalf. 5. Shri Pramod Manbansh, learned counsel appearing on behalf of the petitioners, while challenging both the orders, submits that the enquiry, which was conducted by the learned Magistrate was contrary to the statutory provision as well as inflict with the principles of natural justice. Learned counsel for the petitioners submits that even witnesses were examined behind back of the petitioners and thereafter, the learned Magistrate concluded that there were apprehension of breach of peace by the petitioners and directed for executing a bond of Rs.2,000/-. Meaning thereby that both orders were passed by the learned Sub Divisional Magistrate on 5.8.1997. Learned counsel for the petitioners, in support of his argument, has relied upon number of judgments of this Court as well as Supreme Court. He has referred to 5 1982 BLJR 65 (Chandra Kishore Choudhary Vs. State of Bihar) and AIR 1971 Supreme Court 2481 (Madhu Limaye Vs. Ved Murti and others). It was submitted that law on the point has already been made clear in afore referred judgments that no enquiry under Section 116 of the Code of Criminal Procedure can be conducted in absence of accused/concerned party and, accordingly, he has prayed that order dated 5.8.1997 may be quashed. On the query made by the court as to whether any purpose will be solved in dealing with the present case in a situation where the life of the order, which was only for one year, had already expired, learned counsel for the petitioners submitted that in similar situation in a case reported in 1959 Patna 304 (Jangi Gope & ors. Vs. The State through Ramsakal Singh), this Court even after expiry of the period of bond had interfered with the order and quashed the same. 6. I have also heard Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appearing on behalf of the State. 7. Besides hearing learned counsel for the petitioners and State, I have also 6 perused the materials available on record. On perusal of the record, it appears that after the order dated 5.8.1997, the petitioners were got arrested and finally on 29.1.1998, they were produced before the Executive Magistrate and after, the execution of bond for Rs.2,000/- in the light of order dated 5.8.1997 for maintaining peace, the petitioners were released. Accordingly, petitioners were directed to maintain peace in the light of bond executed by them for a period of one year. From perusal of the order dated 8.10.1999 passed in Cr. Appeal No.20 of 1998, it is not clear as to on which date the appeal was preferred against the order dated 5.8.1997. Even in the appeal, no prayer was made regarding quashing of the order dated 29.1.1998. It is not in dispute that law is settled on the point that enquiry under Section 116 of the Code of Criminal Procedure cannot be held behind back of the concerned party, but keeping in view the fact that the period of bond had already expired long back, this Court is of the opinion that there is no requirement for passing any positive order in favour of the petitioners and, accordingly, 7 the petition is disposed of without any direction. 8. Office is directed to remit back the Lower Court Records to the concerned Magistrate. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 3.8.2010 N.A.F.R./N.H.