Cr.PC and Moral Policing

Chapter VIII (Section 107 –Section 116), provides for security for keeping the peace and for good behaviour. The provisions in this Chapter which empower courts and Magistrate to obtain security from a person to prevent him from committing offences in the future are of two kinds. Firstly, security for keeping the peace, which is contemplated under Sections 106 and 107 of the Code and secondly security for good behaviour, which is specified in Sections 108 to 110 of the Code.

Rests of the chapter contains procedure and provisions which is set out in Sections 111 and 112 of the Code. There is no need to go into a detailed analysis of these provisions but I would like to highlight the practice and procedure which is to be adopted by person holding the post of Special Executive Magistrate or Executive Magistrate while conducting these proceedings.

Though the incidents of the various proceedings under this Chapter (Sections 106 to 110 of the Code) differ in material respects, there is one aspect, namely, that all these proceedings have for their object -the prevention, and not punishment of a crime. The other common aspect of all these proceedings is that they are not obligatory but confer the discretionary power on the specified court or magistrate to exercise such power in the specified circumstance being an interference with the liberty of the individual, such power must be exercised judicially, and strictly in accordance with the procedure laid down in the relevant sections.

The Magistrate must first himself consider that immediate measures are necessary for the prevention of the breach of the peace or the disturbance of the public tranquility or then commission of any offence or for the public safety and then after recording his reasons in writing, direct the person concerned to execute a bond for keeping the peace, etc. until the conclusion of the enquiry. This postulates application of his judicial mind by the Magistrate, whose order is subject to judicial scrutiny by superior Courts of Revision and superintendence. He cannot completely mortgage his decision, or abdicate his power or surrender his own responsibility in favour of the police, though it would be well within his competence, in a given case to take into account the police report for what it is worth in forming his own conclusion on the material legally available to him.

But this exercise must indisputably be seen to be done and the order of the Magistrate must clearly reflect the application of the Magistrate’s own judicial mind to the facts and circumstances properly placed before him. However, summary the proceedings under Chapter VIII, Cr.P.C., may be considered, they are judicial proceedings and have to be conducted in accordance with the Code and the Magistrate holding these proceedings must see that the fundamental elements of the judicial process find expression in the machinery for administering justice.

It is clear that an order under Sub-section (3) of Section 116of the Code for furnishing of bond can be made only after the commencement of the enquiry and before its completion, provided the allegations forming the basis of the parent proceeding or the allegations leading to the necessity for furnishing of interim bonds are tested by inquiry and judicial mind is applied for ascertaining whether there is prima facie justifiable basis for such a direction. Sub-section (2) of Section116 provides that the inquiry is to be as nearly as practicable in the manner prescribed for conducting trial and recording of evidence in summons cases. Chapter XX of the Code makes provision for trial of summons cases.

Until the allegations are supported by materials so as to satisfy the judicial mind that a direction for bond is called for, no order for furnishing of a bond can be given. Section 116 of the Code of 1973 corresponds to Section 117 of the Code of 1898, Sub-section (6) and (7) of the 1973 Code are new provision. Old Sub-section (3) commenced with .pending the completion of the enquiry.. The new Sub-section (3), however, starts with .after the commencement and before the completion of the enquiry.. This change has been made so as to put the matter beyond doubt that an interim bond can be called for only after commencement of the enquiry and before its completion.
In so far as order under Section 111of the Code is concerned, it enjoins upon the Magistrate to make an order in writing, setting forth the substance of information received, the amount of the bond to be executed, term for which it is to be in force, and the number, character and class of sureties (if any required) and the Magistrate can only proceed to pass an order under Section 111 of the Code on the basis of substance of the information received by him, which has to be spelt out in the order, which requires that there must be information of a nature which convinces him that there is likelihood of a breach of peace. The person, who gave information might not be in a position to give details, but the source of information might be sufficient to convince the Magistrate that the breach of the peace was likely and if he was convinced, the law required him to take action.

Needless to say, the substance of information must be set forth in the order which depends in each case upon the circumstances of the case. Without an order under Section 111 of the Code, the Magistrate has no competence to deal with such person. In so far the order which is required to be passed under Section 116(3) of the Code -The provisions of Section 116(3) clearly mention that the order of interim bond should be passed after recording reasons therefor. The Magistrate while acting under Sub-section (3) of Section 116, Cr.P.C., has to make careful consideration as regards to the separate case of emergency as contemplated under the said section and he must be satisfied that immediate steps are necessary.

The fact that the police report indicated that the members of the opposite-party were likely to create breach of the peace is not sufficient to pass an order and it cannot be said that the Magistrate has given a careful consideration to the existence of a case of emergency when he merely relies on a police report without even calling the police officer to the witness box. An order made under Sub-section (3) is bad if it is not accompanied by reasons recorded in writing why the Magistrate wants to take the emergency measures.

The next important thing which is required to be kept in mind by the learned Magistrate is in relation to the amount of the bond. This should be fixed with due regard to the circumstances of the case, and must not be excessive. The Magistrate should consider the station in life of the person concerned, and should not go beyond a sum for which there is a fair probability of his being able to find security. Imprisonment is provided as a protection to society against the perpetration of crime by the individual, and not as a punishment for a crime committed, it is only reasonable and just that the individual should be afforded a fair chance at least of complying with the required condition of security.

While passing an order under Section 116(3) of the Code, the Magistrate is also expected to be conscious about the provisions relating to requirements of the bond. Since under new Section 116(3) of the Code a Magistrate cannot demand any surety bond, in a proceeding initiated under Section 107 of the Code the question of executing the bond or the liability of furnishing the surety will no longer arise under the said Section. The relevant provisions of Section 116 of the Code reads as under:

Section 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 present 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 inquiry 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 cases.
(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 a 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 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, in default of execution, until the inquiry is concluded: Provided that –
(a) no person against whom proceedings are not being taken under Section 108, Section 109, or Section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the condition of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under Section111. Sub Section (4) onwards not relevant for our purpose.
In a proceedings initiated under Section 107 of the Code, it is common practice on the part of the Executive Magistrate to insist for surety bond by passing interim order under Section 116(3)Cr.P.C. The court has taken judicial notice of this that inspite of a clear cut provisions in Clause (a) of the proviso to Sub-section 3 of Section 116 of the Code of Criminal Procedure, in a proceeding initiated under Section 107 of the Code and the form No. 12 (Scheduled II) which is prescribed for executing bond under Section107 of the Code, persons are detained in judicial custody for their failure to furnish interim surety in a proceedings initiated under Section 107 of Chapter VIII of the Code in exercise of jurisdiction not vested upon them in law . Having clarified the fact that in a proceedings initiated under Section 107 of the Code no surety/security or personal bond is required to be furnished under an interim order under Section116(3) Cr.P.C., henceforth if it comes to the notice of this Court that a person against whom proceedings are initiated under Section 107 of the Code is detained in judicial custody for failure on his part to furnish interim surety/security Bond or personal Bond pursuant to an order passed under Section 116(3) of Cr.P.C. The State shall be liable to pay compensation to such person for violation of his fundamental right enshrined under Article 21 of the Constitution of India and the aggrieved person may also take recourse to other remedies available to him under the general law viz to prosecute the said magistrate for wrongful confinement and appropriate compensation for wrongful detention.

Section 144
Courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities, within their special knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them. Past conduct and antecedents of a person or group or an organisation may certainly provide sufficient material or basis for the action contemplated on a reasonable expectation of possible turn of events, which may need to be avoided in public interest and maintenance of law and order. No person, however, big he may assume or claim to be, should be allowed irrespective of the position he may assume or claim to hold in public life to either act in a manner or make speeches which would destroy secularism recognised by the Constitution of India, 1950 (in short the ‘Constitution’). Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that State should have no religion of its own and no one could proclaim to make the State have one such or endeavour to create a theocratic state. Persons belonging to different religions live throughout the length and breadth of the country. Each person whatever be his religion must get an assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of ones own presumptuous good social order. Therefore, whenever the concerned authorities in charge of law and order find that a person’s speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foot hold undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings.
Communal harmony should not be made to suffer and be made dependent upon will of an individual or a group of individuals, whatever be their religion be it of minority or that of the majority. Persons belonging to different religions must feel assured that they can live in peace with persons belonging to other religions. While permitting holding of a meeting organised by groups or an individual, which is likely to disturb public peace, tranquility and orderlines, irrespective of the name, cover and methodology it may assume and adopt, the administration has a duty to find out who are the speakers and participants and also take into account previous instances and the antecedents involving or concerning those persons. If they feel that the presence or participation of any person in the meeting or congregation would be objectionable, for some patent or latent reasons as well as past track record of such happenings in other places involving such participants necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may not justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons. The imminent need to intervene instantly having regard to the sensitivity and perniciously perilous consequences it may result in, if not prevented forthwith cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination of social interests, needs and necessities to preserve the very chore of democratic life – preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of Courts – unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of those in power, and interference as a matter of course and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent. It is useful to notice at this stage the following observations of this Court in the decision reported in Madu Limaye v. Sub Divisional Magistrate, Monghyr and Ors. The gist of action under Section 144 is the urgency of the situation, its efficiency in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and, in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restriction which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.

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