Judgment:
B.P. Das, J.
1. This is a Suo Motu Criminal Revision registered on the basis of the grievance of Sohella Bar Association against the action of Shri D. Mohapatra, Executive Magistrate, Sohella while dealing with the cases under Section 109, Cr.P.C. on his file. It is stated that although the delinquents were ready to go on bail by executing bonds, the learned Magistrate remanded them to jail custody in Criminal Misc. Case/Nos. 58 of 1998 and 60 of 1998. That apart, an application was also made by delinquent - Kunja Bihari Bariha, son of Udhaba Bariha, resident of village Sarkanda, P.S. Sohella, District Bargarh, addressed to the Hon'ble Chief Justice of this Court from the jail custody stating therein that he was arrested by the Sohella Police on 31.8.1998 under Section 109, Cr.P.C. and was produced on the same day before the Executive Magistrate, Sohella. He engaged Mr. A.K. Barik, Advocate, who filed Vakalatnama on his behalf along with a good-behaviour bond for his release, but the Executive Magistrate, Sohella without considering the submission of the lawyer and without accepting the offer of bail, passed an order of remand and sent him to jail custody. The allegation of the Bar Association is also on similar lines. The extract of resolution of the Bar Association, Sohella is as follows :
*** *** ***Mr. K.B. Sahu, Advocate for the delinquents in Criminal Misc. Case No. 60/98 gives in writing that on 31.8.1998 the delinquents in above noted case under Section 107 Cr.P.C. were produced before the Executive Magistrate, Sohella, Sri D. Mohapatra, who considered the matter and passed an order for consideration of the petition of the delinquents and adjourned the same till 10.9.98.
However, in view of the nature of the case and urgency of the matter, Mr. K.B. Sahu, Advocate asked for a certified copy of the order dated 31.8.98 in order to move the appellate Court. The said order was pronounced in open Court in the presence of Mr. K.B. Sahu, Advocate, and the delinquents and some of the members of the Bar. However, to the dismay of the concerned advocate and members of Bar who were present at the time of pronouncement of the order, the original order found to have been tampered during perusal of the above noted case record. The original order was for the consideration of the petition dated 10.9.98. But subsequently, it is found from the order sheet that the Executive Magistrate Sohella who its seems exercising a jurisdiction of which not sure of himself.
As such the members of the Bar unanimously condemn the arbitrary and illegal action of the Executive Magistrate, Sohella.*** *** ***Sd/- President.*** *** ***
2. Basing upon the aforesaid allegations, on 23.9.1998 suo motu action was taken by this Court and the records of Criminal Misc. Case Nos. 58 of 1998 and 60 of 1998 of the Court of Executive Magistrate, Sohella were called for and the copy of the letter received from the Bar Association, Sohella as well as copy of the petition of delinquent-Kunja Bihari Bariha made from jail custody were directed to be supplied to the learned counsel for the State. From the order passed by this Court on 27.11.1998, it reveals that notwithstanding the telegram sent on 27.10.1998, the records had not been received from the Executive Magistrate, Sohella, for which the matter was directed to be listed on 5.12.1998 and the counsel for the State was directed to produce the records on that date. On 5.12.1998, on perusal of the records, this Court issued notice to the Executive Magistrate, Sohella to show cause as to why the orders passed by him in Criminal Misc. Case Nos. 58 and 60 of 1998 shall not be set aside, and as to why action shall not be taken against him for remanding the persons to jail custody notwithstanding their offer to go on bail by executing bonds. The matter was listed on 15.1.1999, but the same was adjourned to 12.2.1999 to enable the opposite party to file his show cause reply. On 12.2.1999 the matter was adjourned for two weeks and show cause was allowed to be filed within that period. On 4.10.1999 the matter was adjourned at the instance of the learned counsel for the opposite party. Thereafter, several adjournments were granted to the opposite party and ultimately when the, matter was listed on 17.7.2001, learned counsel for the opposite party prayed for three weeks' time to file show cause reply and the prayer was allowed. The matter then appeared in the list on 10.1.2002. From the order-sheets, it appears that despite grant of several adjournments to the Executive Magistrate to file his show cause reply, he failed to file the same.
3. From the order sheets of Criminal Misc. Case No. 58 of 1998 of the Executive Magistrate, it is found that on 31.8.1998 the delinquent was produced in custody before the Executive Magistrate, who passed the following order on that date :
*** *** ***Perused the P.R. where it appears to me that the delinquent is trying to conceal his presence with a view to submitting some cognizable offence.
Hence the delinquent is directed to show cause as to why he should not be ordered to execute a bond of Rs. 2000/- (Rupees two thousand) only for keeping good behaviour for a period of one year.
Later on : The Delinquent failed to file P.R. bond. He is remanded to jail custody Jill 7.9.98.
*** *** ***Later on : Advocate for the delinquent filed P.R. bond but not accepted. The delinquent is remanded to jail custody till 7.9.98.'
4. The order passed in Criminal Misc. Case No. 60 of 1998 by the Executive Magistrate on 31.8.1998 and 3.9.1998 in respect of the delinquents, namely, Nandalal Bhoi, Ananda Sahoo, Parikhita Pradhan, Himansu Khamari, Chhayakanta Khamari and Biswanath Khamari is quoted herein below :
*** *** ***31.8.98 : Whereas I am satisfied from the Non-FIR No. 29/98 submitted by the O.I.C., Sohella P.S. that the 2nd party members named above are creating disturbances in the peaceful living of the 1st Party member and has been forwarded to this Court being arrested by the O.I.C. Sohella P.S.
Received a report from the O.I.C. that breach of peace affecting public peace and tranquility at village is apprehended due to the violent activities and attitude of the 2nd party members.
Thus, there are reasons to believe that there is apprehension of breach of peace in public tranquility and endangering to human life.
I am satisfied that there is further possibility of breach of peace in view of the seriousness of the case, if they will be left free and hence remanded them to jail custody till 10.9.98.
*** *** ***Later on : Sri K.B. Sahu files power on behalf of the 2nd party members along with a petition to release the 2nd party members. The 2nd party members are remanded to jail custody till 10.9.98. The petition is rejected because of the facts stated above.
Put up on 10.9.98.
*** *** ***3.9.98 : The case record is put up today on the strength of bail petition and put up petition filed by the delinquents. Advocate Sri G.D. Pati and others have filed Vakalatnama on behalf of the delinquents. Heard the Advocates for the delinquents and also the A.P.P. The Advocate for the delinquents prayed to release, the delinquents on P.R. bond. On the other hand the learned A.P.P. stated that if the situation at present in the locality is tense and accordingly he prays either to reject the bail petition or to call for a report from the concerned police station for the purpose on consideration of the bail. By way of reply the learned Advocate for the delinquents submits that when the delinquents are prepared to furnish bond for their bail to the satisfaction The Secretary, Bar Association v. Sri D. Mohapatra of the Court then the Court has no jurisdiction to detain them. In this regard he relies on a decision reported in 1983 Cr.L.J. at page-315.
After considering the submission of both sides, I am inclined to release the delinquents on execution of personal bond of Rs. 2,000/- each as security for their future appearance in this case.
Accordingly, the delinquents are directed to furnish bond of Rs. 2,000/- each.
*** *** ***Later on : The delinquents as per the direction submitted personal bond of Rs. 2000/- each. I accepted and the delinquents are directed to be released.'
5. Along with the petition addressed to Hon'ble Chief Justice, delinquent - Kunja Bihari Bariha has enclosed the photo copy of the good behaviour bond bearing the signature of the delinquent and the vakalatnama filed by his counsel before the Executive Magistrate on 31.8.1998. Prima facie, it appears that a good behaviour bond in terms of the order of the Magistrate was offered and so also a P.R. bond, which were not accepted by the Executive Magistrate.
6. At the outset, it is profitable to quote Sections 107 and 109 of the Code of Criminal Procedure.
' 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, (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 tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.'
109. Security for good behaviour from suspected persons: When an Executive Magistrate receives 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 office, 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.'
7. The proceeding against the delinquents were initiated under Section 109 of the Cr.P.C. The provisions under Section 109, Cr.P.C. speak about security for good behaviour from suspected persons. When an Executive Magistrate receives 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 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.
8. In the present case, the Magistrate directed the delinquents to show cause as to why they should not be ordered to execute a bond of Rs. 2000/- each for keeping good behaviour for one year. At the same time on the same day, without waiting for the show cause, the Executive Magistrate remanded the delinquents to custody.
9. Section 111 of the Cr.P.C. provides that 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.
10. It is also required that the satisfaction of the Magistrate cannot be on the basis of the police report, but he must satisfy himself on specific information which would give substantial details about the person concerned before the Magistrate considers to take action under Section 110 of the Cr.P.C.
11. In the case of Bira Dalei and Ors. v. State of Orissa, reported in (1991) 7 OCR 184, it has been held that notice to show cause to furnish bond in cases under Sections 107 to 110, Cr.P.C is not empty formality. Substance of information must be furnished which means an abstract of the facts upon which Magistrate intends to proceed so that the person proceeded against is informed of the allegation.
That too, while making an order under Section 111, Cr.P.C. the Magistrate has to apply his judicial mind to the facts and circumstances of the case before exercising the preventive Magisterial jurisdiction and secondly to enable the person proceeded against to have reasonable opportunity to come prepared for what he has to meet. (See 1988 (II) OLR 491 : Nillu v. State of Orissa).
12. Here is a case where the delinquents were asked to file their show cause but nothing had been given to them as to the materials against the delinquents. Despite furnishing the P.R. bonds, as it appears from the L.C.R., the same were not accepted, the reasons of which have not been stated in the order sheet and the delinquents were remanded to jail custody. The delinquent in Crl. Misc. Case No. 58 of 1998 was released on 7.9.1998 and the delinquents in Crl. Misc. Case No. 60 of 1998 Were released on 3.9.1998, on which dates the good behaviour bonds of the delinquents were accepted. From the record, it appears that the good behaviour bond was filed by delinquent-Kunja Bihari Bariha on 7.9.1998 so also the Vakalatnama of his counsel Mr. A.K. Barik. As it appears, delinquent-Kunja Bihari Bariha was detained in custody from 31.8.1998 till 7.9.1998. Similarly in Criminal Misc. Case No. 60 of 1998 in respect of the delinquents, namely, Nandalal Bhoi, Ananda Sahu, Parikhita Pradhan, Himansu Khamari, Biswanath Khamari and Chhayakanta Khamari, good behaviour bonds were filed on 3.9.1998 through their advocate Mr. K.B. Sahu. From the order-sheet, it appears that the said delinquents were detained in jail custody from 31.8.1998 to 3.9.1998.
13. Considering the aforesaid facts and circumstances of the case, I am of the view that the orders dated 31.8.1998 passed by the Executive Magistrate, SohelIa, in Criminal Misc. Case No. 58 of. 1998 and Criminal Misc. Case No. 60 of 1998 are illegal, arbitrary and not sustainable in law. The same are, therefore, set aside. As illegal orders have been passed touching upon the liberty of the persons inasmuch as they were remanded and kept under illegal confinement from 31.8.1998 to 7.9.1998 in Crl. Misc. Case No. 58 of 1998 and from 31.8.1998 to 3.9.1998 in Crl. Misc. Case No. 60 of 1998, the Executive Magistrate, namely, Sri D. Mohapatra is directed to pay compensation to each of the above named persons at the rate of Rs. 2,000/-. The payment shall be made within a period of two months hence.
14. The Suo Motu Criminal Revision is accordingly disposed of.