Misc. Case No. 115 of 2023 · The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2923 of 2023 An application under Section 482 of the Code of Criminal Procedure, 1973 arising out of Crl. Misc. Case No. 115 of 2023 in the Court of the learned Executive Magistrate, Panposh, Udit Nagar, Rourkela. -------------- Rabindra Kumar Sahoo ..…. Petitioner -versus- 1. Vikash Sahoo 2. Executive Magistrate, Panposh, Udit Nagar 3. S.I., Udit Nagar 4. Additional S.P. Zone-II, Rourkela …… Opp. Parties ----------------------------------------------------------------------------- For Petitioner Mr. S. Udgata, Adv. : For Opp. Parties ----------------------------------------------------------------------------- Mr. S.S. Mohapatra, A.S.C. : CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 08th September, 2023 Savitri Ratho, J. This application under section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing the proceeding in Crl. Misc. Case No. 115 of 2023 pending in the Court of the learned Executive Magistrate, Panposh, Udit Nagar, Rourkela. CRLMC No. 2923 of 2023 Page 1 of 17 2. Mr. S. Udgata, learned counsel for the petitioner submits that as the Executive Magistrate, Panposh has not held any preliminary fact finding inquiry and has not recorded his satisfaction before issuing notice, which are mandatory, the proceedings are vitiated and are liable to be quashed. He has also submitted that as similar notice had not been issued against Vikash Kumar Sahoo the first party in CRLMC No. 115 of 2023, the proceeding is perse illegal. In support of his submissions, he relies on the decisions of this Court in the case of Fakir Charan Singh vs. State of Orissa : 1988 ( II) OLR 72, Purushottam Dash vs. Bhaskar Dash : 1989 ( I ) OLR 78, Chandramani Nayak vs. State of Orissa :1992 Cri. L. J. 2188 and Dibakar Bhoi vs. State of Orissa : 2009 (I) OLR 935. 3.
Legal Reasoning
Mr. S.S. Mohapatra, learned Addl. Standing counsel referring to the photostat copies of the ordersheets has submitted that the petitioner has already filed his show cause reply in CRLMC No. 115 of 2023 and that similar show cause notice had been issued to opposite party No.1 Vikas Sahoo in CRLMC No. 114 of 2023 where he is the second party in the case but he had prayed for time to file show cause as he had not been supplied a copy of the P.R. His further submission is that since proceedings CRLMC No. 2923 of 2023 Page 2 of 17 under Section – 107 Cr.P.C. have been initiated against the petitioner as well as opposite party No.1 and as the petitioner has already filed his show cause reply and opposite party no.1 had sought for time to file it, there is no merit in the submissions of the learned counsel for the petitioner for which the CRLMC should be dismissed. He has also submitted that before issue of show cause notice, an enquiry is not mandating but the learned Magistrate has to conduct an enquiry before passing the final order. 4. Perusal of the ordersheets in CRMC No. 114 of 2023 and CRLMC 115 of 2023 reveal that proceedings under Section – 107 of the Cr.P.C. has been initiated against opposite party No.1 Vikash Sahoo vide CRLMC No. 114 of 2023 and the petitioner Rabindra Kumar Sahoo vide CRLMC No. 115 of 2023 on the same day i.e. 29.03.2023 by the learned Sub Divisional Magistrate, Panposh and transferred to the Court of the learned Executive Magistrate, Panposh for disposal in accordance with law. By order dated 04.04.2023, in each case, the learned Executive Magistrate after referring to the P.R. submitted by the IIC, Uditnagar Police Station has observed that there is ill feeling between the 1st party and 2nd party members and there is apprehension of breach of peace which may disturb public tranquility. After examining the CRLMC No. 2923 of 2023 Page 3 of 17 case record, he has recorded his satisfaction that there are sufficient grounds to proceed under Section – 107 Cr.P.C. and has passed preliminary order under Section 111 Cr.P.C. and called upon the delinquents to appear and show cause as to why they should not be directed to execute a bond of Rs 5,000/- only each for keeping the peace in the area for a period of one year. 5. In the parawise comments dated 08.08.2023, it has been inter alia stated that the two CRLMCs were received from the Court of the learned S.D.J.M., Panposh for disposal on 29.03.2023- CRLMC No. 114 of 2023 and CRLMC No. 115 of 2023 and notice has been issued to both the parties as there is a case and counter case and the case has been tagged together, both the parties appeared in Court through the learned counsel, the petitioner Rabindra Kumar Sahoo appeared on 02.06.2023 and filed the show cause, but the opposite party no.1 Vikash Sahoo has not filed his show cause till date. Notice has been issued to both the parties for hearing and disposal of the case. 6. Section – 107 and Section 111 of the Cr.P.C. which are relevant for deciding this application are extracted below : Section 107 in The Code Of Criminal Procedure, 1973 107. Security for keeping the peace in other cases. CRLMC No. 2923 of 2023 Page 4 of 17 (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity 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) Proceedings 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 tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction. Section 111 in The Code Of Criminal Procedure, 1973 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 CRLMC No. 2923 of 2023 Page 5 of 17 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. 7. The purpose of section 107 of the Cr.P.C. has been very succinctly stated by the Supreme Court in the case of Istkar vs. State of Uttar Pradesh and another (CRIMINAL APPEAL NO. 2034 of 2022 [Arising out of SLP (Crl.) No. 8586 of 2022] decided on 11th November 2022, while reducing the forfeited amount from Rs 5,00,000/- to Rs 5,000/-. The relevant paragraphs are extracted below : “11. As noticed, the scope and nature of Section 107 CrPC is preventive and not punitive. It aims at ensuring that there be no breach of peace and that the public tranquillity be not disturbed by any wrongful or illegal act. The action being preventive in nature is not based on any overt act but is intended to forestall the potential danger to serve the interests of public at large. In other words, this provision is in aid of orderly society and seeks to avert any conduct subversive of the peace and public tranquillity. The provision authorises the Magistrate to initiate proceedings against a person if upon information, he is satisfied that such person is either likely to commit breach of peace or disturb public tranquillity or is likely to commit any wrongful act that CRLMC No. 2923 of 2023 Page 6 of 17 might probably produce the same result. Simply stated, the provisions of Chapter VIII of the Code are merely preventive in nature and are not to be used as a vehicle for punishment. 12. Moreover, the object of furnishing security and/or executing a bond under Chapter VIII of the Code is not to augment the state exchequer but to avoid any possible breach of peace for maintaining public peace and tranquillity. It is also explicitly stipulated under Proviso (b) to Section 117 that the amount of bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. The Magistrate while ordering security under Section 117 has to take into consideration the status and position of the person to decide the quantum of security/bond; and cannot alter the purpose of the provisions from preventive to punitive by imposing heavy quantum of security/bond, which a person might be unable to pay. The demand of excessive and arbitrary amount of security/bond stultifies the spirit of Chapter VIII of the Code, which remains impermissible.” 8. Before considering the contentions of the learned counsel, it would be apposite to refer to the decision of this Court in the case of Ramesh Chandra Panda vs. State of Orissa : ( 1990) 10 OCR 496 , where this Court has exhaustively dealt with the provisions of Section 107 to Section 117 of the Cr.P.C. and the decisions and held as follows: - CRLMC No. 2923 of 2023 Page 7 of 17 “7. Judged against the aforesaid back-drop of legal principle, the initiation of the proceeding on the basis of the report of the police without making any preliminary fact-finding enquiry cannot be characterised as illegal. The first contention of the learned counsel for the petitioners, therefore, fails. 8. It is next contended by the learned counsel for the petitioners that the notice which was served on petitioner No.2 was vague and not in accordance with the provisions of Sections 111, 113 and 114 of the Code. So far as this aspect is concerned, a perusal of the order dated 25-11-1994 indicates that, in fact, the Magistrate has passed an order in accordance with Section 111 setting-forth the substance of the information received as well as the other details as indicated in Section 111. However, the assertion of the petitioners that the notice sent under Section 113 was not accompanied by the order under Section 111 as required under Section 114 appears to be well- founded. Annexure-1, the notice, also does not contain the substance of the information received. Thus, it can be assumed that the notice has not been served containing the required details as envisaged under Sections 111,113 and 114. The question is whether on account of such defective notice, or summons, the proceeding itself, or even the notice, is to be quashed. In the decision CRLMC No. 2923 of 2023 Page 8 of 17 reported in 63 (1987) CLT 10 : relied upon by the petitioners, the notices to the petitioners in that case were quashed on the ground that provision of Section 111 had not been complied with and it was further observed that it was open to the Executive Magistrate to take action according to law if the necessary conditions still existed. In the decision reported in 64 (1987) CLT 273, following the aforesaid decision in (1987) 63 CLT 10 : (1988 Cri LJ 286) the notice was quashed with observation that it was open to the Magistrate if the circumstances still existed to proceed in accordance with law. Though the earlier decisions of this Court reported in 32 (1966) CLT 515 (Dibakar Pradhan and another v. State) 35 (1970) CLT 954 (Mandalapu Sundar Narayan and 6 others v. V.V. Chenulu) 53 (1982) CLT 39 (Purnananda Behera and another v. Sunaker Singh and another) were referred to in 64 (1987) CLT 273, the learned Judge thought it fit to quash the notice on the ground that the exercise of power by the Magistrate was plainly an abuse of the process of the Court and on the further ground that such abuse of the process of the Court was being practised with impugnity as evidenced by the fact that cyclostyled notices had been issued. In none of these two decisions relied upon by the petitioners, the effect of Chapter-XXXV and more CRLMC No. 2923 of 2023 Page 9 of 17 specifically Section 465 of the Code was considered. Section 465(1) reads as follows :- reason of “465. Finding or sentence when reversible by error, omission or irregularity.- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order competent passed by a Court of jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has fact been occasioned thereby.” in The irregularity in the service of summons in this case, does not have the effect of vitiating the proceeding. The revisional Court is not entitled to quash the order (or, in this case, the summons/ notice) unless it comes to the conclusion that the error or the irregularity has occasioned failure of justice. It is true that as required under Section 111, read with Sections 113 and 114, the copy of the order as envisaged under Section 111 should have accompanied the summons/notice. However, mere non-compliance with the aforesaid provisions did not have the effect of vitiating the CRLMC No. 2923 of 2023 Page 10 of 17 proceeding itself. Instead of rushing to the High Court, the petitioners could have appeared before the concerned Magistrate and insisted upon compliance with Sections 111, 113 and 114. If inspite of their application, the Magistrate would not have furnished the required information or the required order, one could possibly have made a legitimate grievance before the revisional Court. Therefore, merely on account of non-compliance with the provisions of Sections 111, 113 and 114, I am not inclined to quash the summons/notice. With respect, I prefer to follow the Division Bench decision of this Court reported in 36 (1970) CLT 954, which has been subsequently followed, albeit, reluctantly in 53 (1982) CLT 39. In 63 (1987) CLT 10 though the learned Judge referred to and extracted from para 18 of the decision in 36 (1970) CLT 954, he lost sight of the fact that in the said case, in fact, neither the notice nor the proceeding itself had been set aside and only the order of the Magistrate calling upon the delinquent to execute interim bond was quashed. In the following sub-paragraph of para 18, it was stated :- that “On the facts of this case, we are of opinion the Magistrate was not justified in calling for execution of interim bonds. The proceeding under Section 112 cannot however be quashed.” CRLMC No. 2923 of 2023 Page 11 of 17 Unfortunately, the aforesaid sub-para as well as the ordering portion as contained in para 19 were lost sight of by the learned Judge. In 64 (1987) CLT 273, the decisions reported in 36 (1970) CLT 954 as well as 53 (1982) CLT 38, were noticed, but the learned Judge preferred to quash the notice on the ground that the Magistrate had abused the process of the Court. Apparently, the learned Judge concluded as above, as he found that the notices had been issued in cyclostyled form which according to the learned Judge indicated lack of application of judicial mind. With respect, I venture to observe that the statutory form prescribed in Form No. XIV in the second schedule appended to the Code was lost sight of. The said Form No. XIV is meant for issuing summons in accordance with Section 113 of the Code and it is but natural that while issuing such summons to a number of persons, the cyclostyled form has to be utilised. Of course, it is true that in the form itself, it is required that the substance of the information should be indicated. In fact, the order under Section 111 requires that the substance of the information should be indicated and if the said order is sent along with the summons as envisaged under Section 113 read with Section 114, there will be sufficient compliance with the requirement of law. Form No. CRLMC No. 2923 of 2023 Page 12 of 17 XIV and for that matter all the forms as contained in Second Schedule having been prescribed under Section 476 of the Code are statutory in nature. Therefore, merely because the summons had been issued in a cyclostyled form should not have been taken to be a ground for vitiating the notice served in a particular case without keeping in view the provisions of Chapter XXXV as well as the pronouncements made in earlier decisions including the Division Bench decision reported in 36 (1970) CLT 954. The ratio of the decision in 64 (1987) CLT 273 is thus not applicable in each and every case and must be confined to peculiar facts of that case. I may add that ratio of 36 (1970) CLT 954 on this aspect is not diluted by the fact that the principle contained therein relating to execution of interim bond under Section 116(3) has been impliedly overruled in AIR 1971 SC 2486 (Madhu Limaye's case). 9. Taking a clue from the decision in (1982) 53 CLT 39, it was submitted as a last resort that since more than a year has elapsed in the meantime, there may not be any further necessity to continue the proceeding under Section 107 of the Code. I am afraid, on the facts of this case, the observations made in paras 5 and 6 of the decision in 53 (1962) CLT 38, may not rescue the petitioners. The petitioners of that case had filed CRLMC No. 2923 of 2023 Page 13 of 17 an undertaking not to endanger public peace and tranquillity and had virtually bound themselves down for about one year pursuant to an interim order of the High Court and there was no report or allegation that they had committed any overt acts or had violated the terms of the undertaking as evident from the observations made in para 5 of the decision. Such is not the case here. In the present case, the further proceedings had been stayed and the matter has lingered on in the High Court for more than one year. If the procedure adopted in 53 (1982) CLT 39, is to be followed, in each and every case arising from a proceeding under Section 107, the person concerned would obtain a stay order, linger the case and thereafter seek similar relief as was granted in the said case. Therefore, while declining to accept the aforesaid prayer of the petitioners, I, however, direct, as was done in (1993) 6 OCR 166, that the Magistrate may take into account this aspect of the matter and consider as to whether in the changed circumstances due to passage of time, the proceeding should continue further. It is made clear that in case the Magistrate decides to continue the proceeding, he must now comply with the requirements under Sections 113 and 114 of the Code and give opportunity to the persons concerned to show cause only after supplying the CRLMC No. 2923 of 2023 Page 14 of 17 copy of the order under Section 111 as well as furnishing the substance of the information received.” 9. From a reading of the provisions and the aforesaid decision it is forthcoming that the Magistrate issuing notice under Section 107 should comply with the requirements of Section 111. He should set forth the substance of the information received and thereafter adopt the procedure laid down in Section 112 or Section 113, as the case may be. While issuing summons, a copy of the order made under Section 111 and the police report should be enclosed and delivered to the person concerned. The purpose of enclosing the P.R and the reducing the substance of the information in the order and enclosing the same with the notice is to enable the delinquent (second party) to be aware of the allegations against him so that he / she can file a show cause reply. This does not mean that non-compliance will vitiate the proceeding. But non compliance would definitely result in delay in the proceedings which would defeat the purpose behind initiation of the proceedings, as a party would have to appear in the proceeding and ask for supply of copies of the order and the police report for filing a show cause reply which has happened in this case. CRLMC No. 2923 of 2023 Page 15 of 17 10. It has also been decided a fact finding enquiry is not mandatory before issuing notice to show cause. But a fact finding enquiry is mandatory after the delinquent files a show cause reply and before a delinquent can be asked to execute interim bond u/s 117(3) Cr. P.C. and of course before passing the final order under Section 111 Cr.P.C. 11. The contention of the learned counsel that proceedings under Section – 107 Cr.P.C. have not been initiated against the opposite party No.1 Vikas Sahoo, carries no force in view of initiation of CRLMC No.114 of 2023 against. The said contention being devoid of merit is rejected. The petitioner should not have rushed to this Court without verifying the actual position. 12. In view of the discussion above, the contention of the learned counsel that the proceedings stand vitiated as the order containing the gist of the allegations and a copy of the P.R have not been enclosed with the notice, is also rejected. 13 The petitioner has already filed his show cause and the opposite party No.2 who is the second party in CRLMC No.114 of 2023 had appeared in the case and has been granted time for filing of show cause reply, I am therefore of the considered opinion that CRLMC No. 2923 of 2023 Page 16 of 17 no useful purpose will be served in keeping this CRLMC pending. As the Executive Magistrate is in seisin of the matter, he shall do well to proceed with the matter expeditiously as more than five months have elapsed since submission of the P.R on basis of which the proceedings under Section – 107 of the Cr.P.C. were initiated against the petitioner and opposite party No.1, in accordance with the relevant provisions. 14. The CRLMC is disposed of with the aforesaid observations. 15. Urgent certified copy of this order be granted on proper application. ……………………… (Savitri Ratho, J.) Orissa High Court, Cuttack. The 08th day of September, 2023. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 27-Sep-2023 15:02:46 CRLMC No. 2923 of 2023 Page 17 of 17