1N THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION ( 227 ) No. g um 0f 2009 PETITIONERS f 1. D.A. Kumar , aged about 58 NON APPLICANT? Years, Pastor 85 Chairman, BGCMC Mennonite Mandli, Janjg'r District Janjgir Champa (CG). ‘W\C¢ {wumn . Augustine Ashawan, aged about 57 years, S/o Mr. J.C. Ashawan, Secretary, BGCMC, Mennonite Mandli, Janjgir. 3. Nirmal Peter , aged 46 years, S/o R.C.D. Sonwani, Member BGCMC MennoniterMandli, Janjgir / 4. Vineet Soloman , aged 49 years, S/o R.K. Soloman, Member BGCMC Mennonite Mandli, Janjgir Sl.No. 1 to 4 R/o Mission Compound, Janjgir, District Janjgir Chmpa (CG). 5. Barkat Chandu, aged about 65 years, S/o Philip Chandu, Secretary, BGCMC, Chhattisgarh, R/o Beldarpara, Champa , District Janjgir Champa (CG). / 6:, Arvind Masih, aged about 62 years, S/o S Masih R/o Beldarpara Champa District Janjgir Champa (CG) Versus RESPONDENTS: 1. The State of Chhattisgarh, through the Police Station, Janjgir, District Janjgir Champa-(CG). 2. Executive Mag‘strate, Janjgir, District Janjgir Champa (CG). ’ VVQ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (227) No. 6144 of 2009 NON-APPLICANTS PETITIONERS : D.A. Kumar & others N ,J. Versus RESPONDENTS ‘ : The'State ofChhattisgarh & Another EZRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Mr. N.K. Agarwélz J.) Present : Shri Sushobhit Singh, Advocate for the petitioners. Shri GD Waswani, Govt. Advocate for the State/respondents. W (Passed on 24.01.2011) Legality and propriety ofthe order dated 15.09.2009 (Annexure P/l) passed by Ilnd Additional District & Sessions Judge (FTC), Chhattisgarh, whereby the petitioner’s revision has been dismissed, is under assail in the instant petition. Brief facts as projected by the petitioner are that: one S.A. Massey lodged a complaint before the Station House Officer, PS. Janjgir, against the petitioners inter-alia alleging that the petitioners are trying to harass and intimidate the complainant. On the basis of complaint, an enquiry was conducted; statement of certain persons were recorded and having found that the petitioners are likely to commit the breach of the peace and disturb the public tranquility, Janjgir, ,. "i filed Ishtgasha before the Executive Magistrate, Janjgir. The I Executive Magistrate, by order dated 06.04.2009 (Annexure P/2) l passed a preliminary order based on information received by him ,. from Station House Officer, PS. Janjgir, and at the same time, also passed order under Section 116 (3) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’); directed the petitioners to furnish personal bond of Rs. 5000/— and surety of like amount, and the matter was fixed for appearance of the petitioners on 22.04.2009. Ultimately, on 22.10.2009 (Annexure R/l), the proceedings were dropped. Order dated 06.04.2009, passed by the Executive Magistrate was challenged by the petitioners before the revisional court and the revisional court Vide order impugned dismissed the revision. Hence this petition. Shri Sushobhit Singh, learned counsel appearing for the petitioners would submit that the Magistrate without applying its mind, and Without acting in accordance with the provisions contained in Sections 107, 110, 111 and 116 (3) of Cr.PC has passed the order impugned in a stereotype manner which is per se illegal and deserves to, be quashed as it castsstigma on petitioner’s reputation and character. On the other hand, Shri GD Waswani, Govt. Advocate, appearing for the State/respondents supported the order impugned and‘vwould submit that as the proceedings have already been dr‘opped, nothing survives in the petition and the same has become infructuous. I have heard the counsel appearing for the petitioners, perused th order impugned and also perusedthe order passed by the Executive Magistrate. e As per Section 107 (1) of Cr.PC. 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 occasion a breach of the peace or disturb the 7 public tranquility and is of opinion that there is sufficient ground for he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond (with or without sureties,) for keeping the peace of such proceeding, term for which it is to be in force, and the number, character and clause of sureties (if any) required. As per Section 113 of Cr.PC, if such person is not present in the Whose custody he is to bring him before the court. Section 114 of Cr.PC provides that: every summons or warrant order made under Section 111 and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same. w Section 116 (1) of Cr.PC provides that, when an order under Section 111 has been read or explained under Section 112 to a person in court, or when any person appears or is brought before a magistrate in compliance with, or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall 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. 11. As per Section 116 (2), such inquiry shall be made as nearly as may b practicable, in the manner herenafter prescribed for conducting e i trial and recording evidence inrVS‘mmons-cases. Section 116(3) provides that, after commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the perso in respect of whom the nder n u Section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaning good behavior until i the conclusion of the inquiry, an may detain hi in custody util d m n such bond is executed or, in default of execution, until the inquiry is i concluded. 12. A bare perusal of the order passed by the Executive Magistrate (Annexure P/2) would reveal that the said order was passed in the ’ absence of the petitioners. First part of the order shows that, based on an information received from the Station House Officer, PS u Janjgir, the Executive Magistrate was satisfied that there is sufficient ground for proceeding under Section 107 of Cr.PC against the petitioners, as in his opinion, the petitioners were likely to commit a breach of the peace therefore he passed a preliminary order. A bare reading of the first part of order as a Whole would reveal that the same has not been passed in terms of Section 111 of Cr.PC inasmuch as neither substance of the information received was mentioned nor the amount of the bond to be executed, the term for which it is to be in force, and the number, character and clause of sureties (if any) required, are mentioned. The order of Executive Magistrate is also not in the form of show cause, it is in-fact cyclostyled order. The second part of it shows that order has been passed under Section 116 (3) of Cr.PC requiring the petitioners to furnish personal bond of Rs. 5000/~ with solvent surety of the like amount, whereas, under Section 116(3) of Cr.PC, aher passing of the orderrunder Section 111 of Cr.PC, the 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, and after the commencement and before completion of such inquiry, the Magistrate, if he considers that immediate measures are necessary then only he can direct for execution of interim bond. 13. Here in the instant case, in one cyclostyle form, after filling gapes, the Magistrate passed the order under Section 111 of Cr.PC in the first part of it, and in the second part, passed the order under Section 116 (3) of CLPC which is per se illegal and contrary to the provisions contained in Sections 107 and 116 of Cr.PC. 14. The Supreme Court in case of Madhu Limaye and another v: Ved Mur’ti and othersl has observes in para 15 & 16 of its judgment as under : “15. It appears therefore that the Magistrate used the powers under section 11g (3) without commencing to enquire into the truth of the information. No sworn statement of any kind was obtained by him and he adjourned the cases for the examination of the petitioners without summoning the’“witnesses in support of the information. He however, asked the petitioners to furnish an interim bond or go to Jail.” 16. It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only askifor ’Je an interim bond if he could not complete the enquiry and during the completion of the enquiry’ postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. lIt was not given to the Magistrate to pestpone the case and hear nobody and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan V. Ved Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. ‘970 STPL(LE) 5191 sc Therefore, the Proceedings for asking for an interim bond were completely illegal.” 15. Single Bench of Madhya Pradesh High Court in case of Babulal and another V. State ofM.P.2 has observed in para 13 as under : “l3. In the end the prevailing practice of using pre- cyclostyled forms/pro forrna orders with a few insertions in the space left blank, in such serious matters, which call for judicial application of mind and recording of satisfaction, as contemplated by S. 111 Cr.P.C. must be deprecated in no uncertain tenns. It is inconceivable that judicial orders, though fequired to be passed by Executive Magistrates, could be reduced to cyclostyled proformas. Second Schedule appended to the Code of Criminal. Procedure contains Forms of various descriptions. It was never the intention of the Legislature to provide proforma orders to be passed u/S 111 Cr.P.C. It needs to be impressed upon the Sub-Divisional Magistrate and Executive Magistrate making use of such pre-cyclostyled orders u/S 111; Cr.P.C., that they must shun this practice forthwith, last the proceedings may meet the same fate as in this petition.” 16. In the light of above, it is crystal clear that the Magistrate has not acted in conformity with the provisions contained in Sections -107 and 116 of Cr.P.C. and passed the order in Stereotype manner without informing himself about ‘what he was to do and the order is per se illegal and is liable to be quashed, however, in the light of the ‘ fact that proceedings have already been dropped without passing any E 2 1990 STPL(LE-Crim) 11751 MP x