1 Criminal Writ Petition No.1013 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1013 OF 2010 1. Shivaji Shripati Repale, Age-53 years, Occu-Service & Agril. 2. Tukaram Shripati Repale, Age-47 years, Occu-Service & Agril. 3. Dnyandeo Shripati Repale, Age-50 years, Occu-Agriculture, All R/o.Pargaon Sudrik, Tal.Shrigonda, Dist.Ahmednagar PETITIONERS VERSUS 1. State of Maharashtra 2. District Magistrate, Ahmednagar, Dist. Ahmednagar 3. The Tahsildar and Taluka Magistrate, Shrigonda, Dist.Ahmednagar 4. Police Station, Shrigonda, Dist.Ahmednagar 5. Dr.Bhausaheb Baban Hole, Age-40 years, Occu-Medical Practitioner, R/o.Kalbai Chowk, Tal.Shrigonda, Dist. Ahmednagar 6. Nilima Zumbar Borude, (Deleted) Age-55 years, Occu-Agriculturist, 2 Criminal Writ Petition No.1013 of 2010 R/o.Rajegaon, Tal.Daund,Dist.Pune RESPONDENTS Ms.Anjali Bajpai-Dube, learned counsel for the petitioners. Ms.Y.M.Kshirsagar, learned A.P.P. for respondent State Mr.N.V.Gaware, learned counsel for respondent no.5. Name of respondent no.6 is deleted vide Court’s order dated 30/3/11 (CORAM : A.V.POTDAR, J.) DATE : 04/10/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The present writ petition under Article 227 of The Constitution of India is directed against the order passed by the Tahsildar cum Executive Magistrate Shrigonda dated 12/10/2010, by which respondent no.3 has directed respondent no.4 to give police protection to respondent no.5 so also by way of order dated 28/10/2010, the petitioners herein were directed to give the bond in the sum of Rs.10,000/- for the period of one year for keeping peace and good behaviour under the provisions of Section 116(3) of the Cr.P.C., and also prayed for compensation in the sum of Rs.50,000/- from the respondents in favour of the petitioners. So far as the prayer in respect of compensation, leave is granted to the petitioners to seek appropriate relief before the appropriate forum. So far as the order dated 12/12/2010 to grant police protection in the given 3 Criminal Writ Petition No.1013 of 2010 circumstances is concerned, this order can not be questioned before this Court. The writ petition now remains only in respect of the order dated 28/10/2010, by which the petitioners were directed to give the bond of good behaviour for the period of 1 year in the sum of Rs.10,000/-. 3. Heard learned counsel for the petitioners, learned A.P.P. for State, and learned counsel for respondent no.5. Also perused the record. 4. It appears that the petitioners and their brothers were holding certain ancestral properties admeasuring about 4 acres 24R in Gat No.179 and 4 acre 45 R in Gat No.65. It is stated that due to some dispute between petitioners and their brothers, civil litigation was filed before the learned Civil Judge, J.D. Shrigonda bearing RCS No. 49/2008. By filing civil suit no.49/2008, the plaintiffs, brothers of the petitioners sought perpetual injunction in respect of the landed property situated in Gat No.179. It appears that earlier suit came to be filed somewhere in the year 1997 in respect of the property, in which certain compromise was arrived. It is alleged that by concealing these facts, the suit was filed bearing RCS No.49/2008. It is further alleged that in the said suit, application for injunction was filed which came to be allowed by the Trial Court. It was challenged in the High Court vide Writ Petition No.8252/2010, which is filed before this Court and is pending for final hearing. It further 4 Criminal Writ Petition No.1013 of 2010 appears from the facts pleaded that during the pendancy of this writ petition, part of the property in dispute was alienated by the brothers of the petitioners in favour of respondent no.5, who alleged to be in the peaceful possession of the said property, which is also the subject matter of the pending writ petition before this Court. It appears that respondent no.5 had filed an application for police protection before the Tahsildar/Executive Magistrate, Shrigonda. Accordingly police protection was granted by way of order dated 12/10/2010. 5. It further appears that in the application, in which police protection was granted in favour of respondent no.5, chapter case was initiated against the petitioners and some others. It was on the basis of complaint lodged in Shrigonda Police Station dated 28/10/2010. Then these petitioners were called upon and forced to make certain statements and were directed to give the bond as provided u/s. 110 of The Cr.P.C. 6. During the course of submissions across the bar, my attention is drawn by the learned counsel appearing for the petitioner towards the provisions of Section 110 and 111 of The Cr.P.C., which reads as follows : 110.Security for good behaviour from habitual offenders.- When a Judicial Magistrate of the first class receives information that there is within his local jurisdiction a person who - 5 Criminal Writ Petition No.1013 of 2010 (a) is by habit a robber, house-breaker, thief, or forger, or (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code, (45 of 1860) or under section 489A, section 489B, section 489C or section 489D of that Code, or (e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or (f) habitually commits, or attempts to commit, or abets the commission of - (i) any offence under one or more of the following Acts, namely:- (a) the Drugs and Cosmetics Act, 1940 (23 of 1940); (b) the Foreign Exchange Regulation Act, 1973 (7 of 1973); (c) the Employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952); (d) the Prevention of Food Adulteration Act, 1954 (37 of 1954); (e) the Essential Commodities Act, 1955(10 of 1955); 6 Criminal Writ Petition No.1013 of 2010 (f) the Untouchability (Offences ) Act, 1955 (22 of 1955); (g) the Customs Act, 1962 (52 of 1962); or (ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or (g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit. 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. During the course of submissions, my attention is drawn towards the affidavit in reply filed on behalf of the state/respondents no.1 to 4 particularly contents in para no.13 of the affidavit in reply. According to learned counsel for petitioners, what is stated in para no.13 is not in accordance with Law. 7 Criminal Writ Petition No.1013 of 2010 7. Per contra, learned A.P.P. states that considering the contents of para no.13 of her affidavit in reply, due procedure was followed before the order was passed against the petitioners herein to furnish the bond of good behaviour in the sum of Rs.10,000/- for the period of 1 year. According to learned counsel appearing for respondent no. 5, as the petitioners herein have accepted their guilt, it is not necessary to issue show cause notice as contemplated either u/s. 110 or u/s. 111 of The Cr.P.C. At this juncture, it is useful to give the reference of the observations of this Court in the matter of Surendra versus The State of Maharashtra and others, 2001(4) Crimes 2 wherein in para no.12 and 13, it is observed that, “before passing the order u/s. 110 of the Cr.P.C. for security for keeping peace and for good behaviour, proceedings are taken to prevent commission of such acts. Provision confers drastic power, which should be used with extreme caution, passing of preliminary order under section 111 of the Cr.P.C. is a condition precedent for taking further steps. No final step in proceedings can be made without giving an opportunity to such person to show cause. It is further observed that when the petitioner were arrested and produced before the Special Magistrate and they were asked to furnish the surety. Magistrate failed to follow the procedure as contemplated under section 111 of the Cr.P.C. Order also did not conform to requirements of section 116(3) of the Cr.P.C. It is observed that as the order was passed without complying the provisions u/s. 111 of The Cr.P.C., the orders are passed without following due procedure of Law and required to be quashed and set aside.” 8 Criminal Writ Petition No.1013 of 2010 8. Further it is useful to give reference of the observations of this Court in the matter of Mohan Parmanand Khatri versus M.G.Ingle and others, 2004 Cri.L.J. 1017, wherein it is observed that, “Furnishing the bond of good behaviour causes a social stigma and that can not be forgotten. It should not be taken lightly. Without any justifiable cause or ground, a citizen should not be asked to furnish the bond of good behaviour in a democratic republic wherein his liberty, his status has been guaranteed by the Constitution. His fundamental rights should not be humiliated or molested on insufficient material and he should not be put to a social stigma or embarrassment. Asking a citizen to furnish a bond has to be taken with its proper significance. “ 9. Further it is useful to give reference of the observations in the matter of Vasantkumar Jivrambhai Majithia versus State of Maharashtra and another, 2006 Cri.L.J.1135 wherein it is observed that, “before directing to furnish the bond for keeping peace, provisions of Code are to be scrupulously followed. Order passed in printed form, showing complete non-application of mind and relied upon non-existing evidence. Such order is not maintainable.” 10. In the light of these observations if the facts of this petition are tested, it is clear from the record of this Court and more clear from the contents of para no.13 of the affidavit in reply, filed by the State, that no procedure, as contemplated u/s. 111 of The Cr.P.C. was 9 Criminal Writ Petition No.1013 of 2010 followed by the Tahsildar/Executive Magistrate, Shrigonda before directing the petitioners to furnish the bond of good behaviour u/s. 116(3) of The Cr.P.C. If the petitioners were directed to furnish the bond of good behaviour for the period of one year without following the requisite procedure as contemplated u/s. 111 of The Cr.P.C., the order impugned is passed without following the due procedure, hence required to be quashed and set aside. Accordingly, order dated 28/10/2010 is hereby quashed and set aside. Writ petition is allowed to the extent of quashing of order dated 28/10/2010 only. Rule thus made absolute. (A.V.POTDAR, J.) khs/OCT.2011/cri.w.p.1013-10