Sister @ Babu Singh vs State Of Orissa And Ors. on 6 October, 2004

Orissa High Court
Sister @ Babu Singh vs State Of Orissa And Ors. on 6 October, 2004
Equivalent citations: 98 (2004) CLT 803
Author: A Parichha
Bench: A Parichha


A.K. Parichha, J.

1. The petitioner has challenged the orders dated 16.4.2004, 17.4.2004 and 19.4.2004 passed by the Executive Magistrate Panposh in a proceeding under Section 110 of the Code of Criminal Procedure registered as Cri. Misc. Case No. 409 of 2004.

2. Basing on a report of the Sub-Inspector of Police, Plantsite Police Station in Station Diary No. 544 dated 15.4.2004 the Executive Magistrate, Panposh initiated a proceeding under Section 110, Cr.P.C. against the petitioner and issued warrant against him. Pursuant to the said warrant, the petitioner was produced before the said Executive Magistrate, where he was asked to furnish a bond of Rs. 20,000/- with one solvent surety for his interim release from police custody. In compliance of the said order, the petitioner furnished the bond, but he was remanded to custody and the case was fixed to 18.4.2004 for enquiry. On 18.4.2004 the Executive Magistrate was not available and the enquiry was adjourned to 19.4.2004. Being aggrieved by such order of the Executive Magistrate, the petitioner has preferred the present application invoking the extraordinary jurisdiction of this Court under Section 482, Cr.P.C. to quash the said proceeding and for taking suitable action against the erring police officer as well as the Executive Magistrate.

3. Mr. H. B. Dash Learned Counsel for the petitioner submits that the very initiation of the proceeding against the petitioner and the subsequent orders passed by the Executive Magistrate are contrary to the provisions of law and therefore, the proceeding under Section 110, Cr.P.C. initiated against the petitioner should be quashed and direction should be issued for taking suitable action against the erring police officer and the Executive Magistrate for acting beyond the scope of law.

4. Mr. D R. Mohapatra learned Addl. Government Advocate on the other hand, submits that the initiation of the proceeding was based on a report of a competent police officer and so no illegality was committed by the Executive Magistrate. He further submits that view of the proviso contained in Section 113, Cr.P.C. the Executive Magistrate, Panposh was competent to issue warrant against the petitioner and to remand him to custody. According to him, no illegality is there in the action of the learned Executive Magistrate and therefore, the proceeding need not be quashed.

The relevant portion of Section 110, Cr.P.C. reads thus :

“110. Security for good behaviour from habitual offenders : When an Executive Magistrate receives information that there is within his local jurisdiction a person who –

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(e) habitually commit, or attempts to commit, or abets the commission of the offences involving a breach of the peace, or
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(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 hereafter 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."

Section 111, Cr.P.C. says that when a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, Cr.P.C. deems it necessary to require any person to show cause under this 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. Section 112 states that if the person in respect of whom such order is made is present in Court, such order shall be read over to him, or if he so desires, the substance thereof shall be explained to him. Section 113 says that 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. The proviso to Section 113 days that whenever it appears to such Magistrate, upon the report of the police officer or upon other information (the substance of which report or information shall be recorded by 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, the Magistrate may at any time issue a warrant for his arrest. Section 114 says that 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 Section 115 speaks about dispensing with the personal attendance. Section 116 says that enquiry as to the truth of the information is to be made and Section 117 says that 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, Section 118 says that 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.

5. On close reading of the of the aforesaid provisions, it becomes clear while invoking the power under Section 110, Cr.P.C. a report must be there and after considering that report, preliminary order is to be passed, then the contents of the preliminary order is to be communicated to the delinquent concerned, and then show cause is to be asked for. After filing of the show cause, enquiry is to be conducted and thereafter, if necessary, the delinquent should be asked to furnish a bond with or without sureties for maintaining peace and be of good behaviour for a particular period.

6. The impugned orders dated 16.4.2004,17.4.2004 and 19.4:2004 passed by the Executive Magistrate in Crl. Misc. Case No. 409 of 2004 clearly indicate that none of the above noted procedures laid down in Sections 110 to 117, Cr.P.C. was adopted. For better appreciation, the impugned orders are quoted below :

“16.4.2004 : C/R is put up today on transfer from the Court of SDJM (P) for disposal under Section 110, Cr.P.C. Perused the P/R submitted by the SI of police, Plantsite P.S. along with the S.D.E. No. 544 dated 15.4.2004. The I.O. also deposed before me that the delinquent is a noted anti-social and he has planned to create disturbance during the ensuing elections issue warrant of arrest against the accused for causing productions in this Court immediately.

Case to 17.4.2004.

17.4.2004 : The C/R is put up today. The accused is arrested and produced before me the police Heard him. He denied any ill treatment by the police while in custody. He is assisted by the learned lawyer. Read over the PR in Oriya and explained the charges framed against him by the police. He denied for having any police case against him. The I.O. deposed that he is a veteran anti-social and he may create serious L/O problem during the ensuing elections, From the report and deposition of the I.O. I am satisfied that the delinquent be proceeded against under Section 110, Cr.P.C. He is asked to execute a bond for Rs. 20,000/- with one solvent surety for the like amount for his interim release from police custody.

Pronounced in the open Court this the 17th day of April, 2004.

Later: The delinquent executed the bond as orders. One Brajesh Kumar, a Railway employee of Rourkela stood as surety in this case. He produces the identity card and pay slip of having net pay of Rs, 17,378/- P.M. Perused the same and found in order. Since the delinquent outrightly denied the charges whereas there appears to be two registered cases against him in Plantsite P.S. it is a fit case for hearing from the I.O. regarding the veracity of the charges mainly his anticipated commitment of crime during elections. Call the I.O. to appear on 18.4.2004 for hearing. Till then the delinquent is forwarded to jail custody and ask the Supdt. of Jail to produce him on 18.4.2004.

19.4.2004 : The C/R is put upon today as I was busy in connection with my duty in dispersal counter of pooling personnel throughout the day. Delinquent produced but the I.O. is absent on call. Remanded the delinquent to jail custody till 22.4.2004. Issue fresh notice to the I.O. to appear on 22.4.2004 as a last chance. Advocate for the delinquent prays for supply of a certified copy of the order-sheet. Allowed. Put up the case on 22.4.2004.”

7. Since the Executive Magistrate did not follow any of the procedures laid down under Sections 110 to 117, Cr.P.C. the proceeding against the petitioner becomes unsustainable in the eye of law. Such proceeding in all fairness needs to be quashed.

8. In the result the proceeding under Section 110. Cr.P.C. in Crl. Misc. Case No. 409 of 2004 initiated by the Executive Magistrate, Panposh against the petitioner stands quashed. However the prayer of the petitioner to take action against the police officer and Executive Magistrate is untenable as the actions taken by them were in due discharge of their duties as public servants and public servants are not to be penalised for committing bona fide mistakes.

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