Supreme Court of India
Madhu Limaye vs Sub-Divisional Magistrate, ... on 28 October, 1970
Equivalent citations: 1971 AIR 2486, 1971 SCR (2) 711
It has to be noticed that, when proceedings are contemplated under section 107, the Magistrate takes action when he is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, only after forming an opinion that there is sufficient ground for proceeding against him. The Magistrate cannot start the proceedings merely because of the information received by him. Pursuant to the information, the Magistrate has to form his opinion that there is sufficient round for proceeding. This opinion can be formed on the basis of the information supplied to him if he finds that the information is given in sufficient detail and is reliable enough to justify his acting on its basis. In cases where the information given is not of such nature, it will be the duty of the Magistrate to hold further inquiry and satisfy himself that it is a fit case where action should be taken because sufficient grounds exist. There may be cases where the information may be received from the Police in which case the Magistrate may examine all the Police papers and satisfy himself that there do exist sufficient grounds for him to take, the proceedings as requested by the Police. There may be cases where the proceedings may be instituted at the instance of a private complainant who may be apprehending breach of the peace by the person complained against. In such cases, the Magistrate is bound either to hold some inquiry himself by examining witnesses on oath or to have an inquiry made through the Police, so that he may be able to, form a correct opinion as to the existence of sufficient grounds for proceeding. It is after the Magistrate has taken these steps that he can proceed to make the order under section
112. When,making that order, he has to record in it in writing the substance of the information received which necessarily means the part of the information which was the basis of his opinion that sufficient ground exist for initiating the proceedings. It is at this preliminary stage that the Magistrate is thus required to ensure that a prima facie case does exist for the purpose of . 738
initiating proceedings against the person who is to be called upon to furnish security for keeping the peace. After the order under section 112 has been issued, the procedure to be adopted is that contained in sections 113 and 114. If such person is present in Court, the order under section 112 has to be read over to him and, if he so desires, the substance thereof has to be explained to him. If ha is not present in Court, the Magistrate has to issue a summons requiring him to appear, or, when such person is in custody, a warrant, directing the' officer in whose custody his, to bring him before the Court. Another alternative procedure is laid down for cases where it appears to the Magistrate that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person; in such case-,, the Magistrate can issue a warrant for the arrest of that person. It is under this procedure that the person appears or is brought before the Court. The proceedings to be take thereafter are laid down in section 117(1) .....
(Page 20)
It is in the light of these principles that, in my opinion, the power granted to the Magistrate under section 117(3) should be interpreted. That power is given for cases where immediate measures are necessary for the prevention of a breach of the peace. In such a situation, the Magistrate can direct the person, in respect of whom the order under s. 112 has been made, to execute a bond, with Or without sureties, for keeping the peace pending completion of the inquiry under s. 117(1) and, if he fails to execute the bond, the Magistrate can direct his detention until the enquiry is concluded.
The power under s. 117(3) is most likely to be invoked in cases where the Magistrate has, at an earlier stage, issued the warrant under the, proviso to s. 114. This is so because 'the warrant is issued in cases where breach of the peace cannot be prevented otherwise than by immediate arrest, and S. 117(3) also is to be invoked where the,Magistrate considers that immediate measures are necessary for prevention of breach of the peace. The Legislature, having empowered the Magistrate to issue warrant of arrest, naturally proceeded further to give power to the Magistrate in such cases to direct that bonds for 740
keeping the peace be furnished pending completion of the inquiry. The expression "completion at the inquiry" must be interpreted as the period covered from the beginning of the inquiry until its conclusion. The bonds can, therefore, cover the period from the moment the inquiry is to begin. Such a power for requiring that bonds be furnished pending inquiry is obviously necessary where there is immediate danger of breach of the peace and immediate measures are necessary for its prevention. The order is made on the basis of the earlier opinion formed by the Magistrate under S. 107. Subsequently, of course, when the inquiry is held under s. 117(1), the correctness of the information and the tentative opinion formed ex parte under S. 107 will be properly tested after going through the judicial procedure prescribed for the trial of summons cases and, thereupon, if it is found that there was no justification, the order would be revoked. In my opinion, the grant of such a power to a Magistrate is a very reasonable restriction on the personal liberty of a citizen. It is needed for prevention of crimes and it can only be effective if its exercise is permitted on the basis of opinion formed by tent authority that immediate measures are required. that, under s. 117(3), a person can be detained in prior to a Court arriving at a judicial finding against such a procedure is not only reasonable, but essential.
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The power granted under S. 117(3) is very similar and is intended to ensure that the person, from whom breach of the peace is apprehended, is not at liberty to commit breach of the peace and thus defeat the purpose of the proceedings by being allowed to remain at liberty without any undertaking during the pendency of the inquiry.
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These are the reasons why, in my opinion, the powers under section 117(3) can be exercised without the Magistrate recording evidence and finding a prima facie case after starting the inquiry under section 117(1).
(Page 21, 22)
107. Security for keeping the peace in other cases.
(1) 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 public tranquility and is of opinion that there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond 1[with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
(2) Proceeding under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.
1. Ins. by Act 45 of 1978, section. 11 (w.e.f. 18-12-1978).
108. Security for good behaviour from persons disseminating seditious matters.
(1) When 1[an executive Magistrate] receives information that there is within his local jurisdictions any person who, within or without such jurisdiction -
(i) either orally or in writing or in any other manner intentionally disseminates or attempts to disseminate or abets the dissemination of-
(a) any matter the publication of’ which is punishable under section 124A or section 153A or section 153B or section 295A of’ the Indian Penal Code (45 of’ 1860), or
(b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defarmation under the Indian Penal Code
(ii) makes Produces, Publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code (45 of 1860),
And the magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate 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 his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.
(2) No proceeding shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with, the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf.
1. Subs. by Act 63 of 1980, sec. 2, a for “Judicial Magistrate” (w.e.f. 23-9-1980).
109. Security for good behaviour from suspected persons.
When 1[an Executive Magistrate] receive information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate 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 his good behaviour for such period, not exceeding, one year, as the Magistrate thinks fit.
1. Subs. by Act 63 of 1980, sec.2 for ” Judicial Magistrate” (w.e.f. 23-9-1980)
110. Security for good behaviour from habitual offenders.
When 1[an Executive Magistrate] receives information that there is within his local jurisdiction a person who-
(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 of 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);
2[(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);]
(c) the Employees, Provident Funds 3[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);
(f) the Untouchability (Offences) Act, 1955 (22 of 1955)
(g) the Customs Act, 1962 (52 of 1962) or
4[(h) the Foreigners Act, 1946 (31 of 1946); or]
(ii) any offence punishable under any other law providing for the prevention of hoarding of 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.
1. Subs. by Act 63 of 1980, sec.2 for ” Judicial Magistrate” (w.e.f. 23-9-1980)
2. Subs. by Act 56 of 1974, sec 3 and second Sch., for item (b) (w.e.f. 20-12-1974).
3. Ins. by Act 56 of 1974, sec. 3, and second Sch. (w.e.f. 20-12-1974).
4. Ins. by Act 25 of 2005, sec. 14.
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.
112. Procedure in respect of person present in court.
If the person in respect of whom such order is made is present in court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.
113. Summons or warrant in case of person not so present.
If such person is not present in court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the court;
Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to far the Commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.
114. Copy of order to accompany summons or warrant.
Every summons or warrant issued under section 113 shall be accompanied by a copy of the 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.
115. Power to dispense with personal attendance.
The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader.
116. Inquiry as to truth of information.
(1) 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.
(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons case.
(3) 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 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 reason to be recorded in writing direct the per son 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, in default of execution, until the inquiry is concluded:
Provided that -
(a) no person against whom proceedings are not being taken over under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the conditions of such bond, whether as to the amount thereof or as to the provisions of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order undersection 111
(4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the Community may be proved by evidence of general repute or otherwise.
(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt within the same or separate inquiries, as the Magistrate shall think just.
(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs:-
Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.
(7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.
117. Order to give security.
If, upon such inquiry, it is proved that it is necessary for keeping, the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly:
Provided that-
(a) No person shall be ordered to give security of a nature different from, or of air amount larger than, or for a period longer than, that specified in the order made under section 111.
(b) The amount of every, bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;
(c). When the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.
118. Discharge of person informed against.
If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or if such person is not in custody shall discharge him.
119. Commencement of period for which security is required.
(1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence.
(2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.
120. Contents of bond.
The bond to be executed by any such person shall bind keep him to the peace or to be of good behaviour, as the case may be and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be commit, is a breach of the bond.
121. Power to reject sureties.
(1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purpose of the bond:
Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an enquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate him.
(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him.
(3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before, a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any), that the Surety is an unfit person for the purposes of’ the bond, he shall make an order refusing to accept or rejecting, as the case may be, Such surety and recording his reasons for so doing-,
Provided that before making all order rejecting an surety who has previously been, accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him.
122. Imprisonment in default of security.
(1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison or if he is already in prison, be detained in prison until such period expires or until within such period gives the security to the court or Magistrate who made the order requiring it.
(b) If any person after having executed a 1[bond without sureties] for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor- in-office may after recording, the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.
(2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be before such court.
(3) Such court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit:
Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.
(4) If security has been required in the course of the same proceeding, from two of more persons in respect of any one of whom the proceedings are referred to the Sessions Jude under Sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of subsections (2) and (3) shall in that event, apply to the case of such other person also except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security.
(5) A Sessions Judge may in his discretion transfer any proceeding, laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.
(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the court of Magistrate who made the order, and shall await the orders of such court or Magistrate.
(7) Imprisonment for failure to give security for keeping the peace shall be simple.
(8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the court or Magistrate in each case directs.
1. Subs. by Act 25 of 2005, sec.15, for “bond with out sureties”.
123. Power to release persons imprisoned for failing to give security.
(1) Whenever the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.
(2) Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other court, the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case], may make an order reducing the amount of the security or the number of sureties or the time for which security has been required.
(3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts:
Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired.
(4) The State Government may prescribe the conditions upon which a conditional discharge may be made.
(5) If any condition upon which any person has been discharged is, in the opinion of the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117 or Chief Judicial Magistrate in any other case] by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same.
(6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case].
(7) Unless such person gives security in accordance with the terms of the original order for the un-expired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may remand such person to prison to undergo Such unexpired portion.
(8) A person remanded to prison under sub-section (7) shall, subject to the provisions of’ section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the court or Magistrate by whom such order was made, or to its or his successor.
(9) The High Court or Court of Sessions may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by any order made by it, and the 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may make such cancellation where such bond was executed under his order or under the order of any other court in his district.
(10) Any surety for the peaceable conduct or good behaviour of another person, ordered to execute a bond under this Chapter may at any time apply to the court making such order to cancel the bond and on such application being made, the court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it.
1. Subs. by Act 45 of 1978, sec 12. for “the Chief Judicial Magistrate” (w.e.f. 18-12-1978).
124. Security for unexpired period of bond.
(1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or court, the Magistrate or court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same person descripttion as the original security.
(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be.
further,
criminal manual - chapter 3, clause -
34. The object of the proceedings under Chapter VIII of the Code of Criminal Procedure, 1973 is to prevent, and not to punish, a crime or breach of the peace. Delay may defeat the very object of these proceedings; and, therefore, proceedings under this Chapter should be disposed of with utmost expedition and the least possible harassment and trouble to the parties. Attention of the Magistrates is invited to the provision of subsection (6) of Section 116 of the Code of Criminal Procedure, 1973 under which the inquiry must be completed within a period of six months from the date of its commencement. If such inquiry is not so completed, the proceedings under Chapter VIII of the Code of Criminal Procedure, 1973, on the expiry of the said period of six months, stand terminated, except in cases wherein it is directed by an order recording special reasons in writing.
