1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 790 OF 2009 Kachru s/o Pandharinath Zambre and others. .. Petitioners versus The State of Maharashtra and others. .. Respondents -------- Shri P.D.Suryawanshi, Advocate for the Petitioners Shri B.V. Wagh, A.P.P. for Respondent Nos. 1 to 3. Shri A.R.Gaikwad, Advocate, holding for Shri S.S.Thombre, Advocate for Respondent No.4. --------- 2 Coram : P.R. Borkar, J. Date : December 2, 2009 P. C. 01. Rule. By consent of parties, rule made returnable forthwith and the writ petition is heard finally at the admission stage itself. 02. This is a writ petition by the persons against whom, Respondent No.2 Special Executive Magistrate- Police Inspector, Local Crime Branch, Beed has initiated proceedings under Section 107 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) and in which order is passed by him on 9.4.2009 directing the petitioners herein to furnish personal bonds and two sureties of like amount and since there was non compliance, the petitioners were sent to jail. So, these proceedings in Court Case No. 131 of 2009 are sought to be quashed. 3 03. Heard. Advocate Shri P.D. Suryawanshi relied upon the case of Pravin Taware vs. Special Executive Magistrate, 2009 (5) Mh.L.J. 723, and argued that in the present case, necessary procedure as required under the law, is not followed by Respondent No.2-Special Executive Magistrate. In the reported case, the learned Executive Magistrate had passed order under Section 111 of the Cr.P.C. and had initiated proceedings under Section 110(e) and 110(g) of the Cr.P.C. In that matter,t he court issued several directions in paragraph 9 of its judgment to the Government and its officers regarding training to all Executive Magistrates. Direction No. 3 is to the effect that the Executive Magistrate shall at interim or final stage, should give sufficient time to the person for furnishing bond and surety. Direction No. 4 indicates that at the stage of enquiry, the Executive Magistrate should not ask for bond unless he has satisfied himself about truth of the information sufficient to make out a case for taking bond etc. 4 04. In this case, it appears that on 9.4.2009, the A.S.I. Asthi Police Station had sent a report against the present petitioners for initiating proceedings under Section 107 of the Cr.P.C. The learned Executive Magistrate on that day recorded that A.S.I. Shri Bhonge had produced the petitioners before him at about 8.25. p.m. and the petitioners had no complaint against the police. It is further recorded in the order that in order to maintain the peace and tranquility, each petitioner should execute person interim bond of Rs.10,000/= with two Gazetted Officers as guarantors for Rs.7000/= or two respectable persons by the side of fish tank. Although the order says that opportunity was given to the petitioners to give such bonds, sureties and guarantors, it is clear from the said order itself that the petitioners were sent to M.C.R. immediately and not by separate order. So, it is argued on behalf of the petitioners that, in fact, there was no opportunity given to the petitioners to furnish bail and directly they were sent to M.C.R. Further order is dated 11.4.2009 which 5 shows that the petitioners were released on bail on that day. 05. It does not appear that Respondent No.2 has passed order as required by Section 111 of the Cr.P.C. As per section 111, 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. 06. In the present case, the order dated 9.4.2009 passed by Respondent No.2 does not contain the substance of information received or the term for which the bond is to be executed. As per Section 112, such order has to be read over to the person brought before the Magistrate and against whom the proceedings are to be initiated and if such person so desires, substance of such 6 order should be explained to him. As per Section 116, thereafter the Executive Magistrate is required to proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary. Sub-section (3) of Section 116 lays down that 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 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 the 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 or, in default of execution, until the inquiry is concluded. 7 07. So, the Magistrate is supposed to pass separate order under Section 116 (3) showing that he has applied his mind to the facts and circumstances of the case and that he considers it necessary that immediate measures are required to be taken in the form of interim bond. So, the interim bond is not to be taken as a matter of routine without such satisfaction and without passing such separate order. Proviso to sub- section (3) of Section 116 says that there cannot be interim bond so far as proceedings under Section 107 of the Cr.P.C. are concerned. Proviso (a) restricts exercise of powers under sub-section (3) of Section 116 to the proceedings under Sections 108, 109 or 110 of the Cr.P.C. Proviso (b) is also equally important, inasmuch as it lays down that the conditions of bond or number and character of the surety should not be more onerous than those specified in the order under Sec.111. 08. In the present case, apparently, the Executive Magistrate has not followed the procedure laid down by law. He has wrongly 8 insisted on interim bond without considering provisions of Section 116 of the Code of Criminal Procedure. 09. In the circumstances, writ petition is allowed. The proceedings initiated by Respondent No. 2 under Section 107 of the Code of Criminal Procedure and his order dated 9.4.2009 are hereby quashed and set aside. Respondent No. 2 is at liberty to initiate fresh proceedings, if so required by following due procedure under the law. 10. Rule made absolute, accordingly. pnd/criwp790.09 (P.R.BORKAR, J.)