Praveen & Another vs State Of U.P. & 2 Others
2017 Latest Caselaw 7767 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Reserved.
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6614 of 2017
 

 
Petitioner :- Praveen & Another
 
Respondent :- State Of U.P. & 2 Others
 

 
Counsel for Petitioner :- Hemendra Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The petitioners by means of this petition under Article 227 of the Constitution of India have prayed to set-aside the order dated 09.1.2014, passed by the Sub Divisional Magistrate, Dhampur, Bijnor in Case No.1802/1803 of 2013 under Section 107/116 Cr.P.C., P.S. Afzalgarh, District-Bijnor. Prayer has also been made to quash the order dated 15.7.2017 passed by Special Judge, Bijnor in Criminal Appeal No.13 of 2014, preferred against the aforesaid order of the Sub Divisional Magistrate, Dhampur, Bijnor.

Heard learned counsel for the petitioners and the learned A.G.A. on behalf of all the respondents. Perused the records.

Some background facts in brief are that on the basis of a Chalani report dated 29.4.2013, filed by Station Officer, Police Station-Afzalgarh, District-Bijnor, (Annexure-No.1), the Sub Divisional Magistrate, Dhampur, Bijnor issued a notice under Section 111 Cr.P.C. to the petitioners on 04.5.2013 fixing 14.5.2013 for their appearance. On 14.5.2013, both the parties were directed to execute bonds of Rs.50,000/- each for keeping peace. However, on 07.9.2013, the Station Officer, Police Station-Afzalgarh, District-Bijnor moved an application before the Sub Divisional Magistrate, Dhampur, Bijnor that despite executing a bond of Rs.50,000/- by each under Section 107 Cr.P.C. for keeping peace, the petitioners and other co-accused persons have disturbed the public tranquility by committing 'Maarpeet' with each other and thereby committed the breach of peace, as a result, a Criminal Case No.340/2013 under Sections 147,148,149,452,307 and 504 I.P.C. has been registered against them. Prayer was made that the amount of their bail bonds be forfeited. On the aforesaid prayer, a notice under Section 116 (3) Cr.P.C. was issued to the petitioners on 16.9.2013 by Sub Divisional Magistrate,Dhampur, Bijnor and both the parties were given opportunity to file their objections against the order of forfeiture of bonds. The learned Sub Divisional Magistrate, Dhampur, Bijnor after hearing both the parties, passed the impugned order whereby forfeiting the personal bonds of Rs.50,000/- filed by each of the petitioners along with personal bonds of other co-accused persons. It was also directed that the amount of bonds be recovered as arrears of land revenue from the petitioners.

The legality and correctness of the aforesaid orders has been challenged by the learned counsel for the petitioners on the ground that the impugned orders are arbitrary in nature. Mere pendency of a criminal case cannot be a ground for forfeiting the personal bonds. It is further contended that the report of Sub Inspector dated 07.9.2013 was ex-parte and the petitioners were not provided any opportunity to cross-examine the Sub-Inspector when his statement was recorded and as such the order dated 09.1.2014 is illegal, arbitrary and is liable to be set-aside. It is also contended that the petitioners did not execute any bond under Section 116 (3) Cr.P.C., rather they had simply executed the bonds for their appearance. However, the learned appellate Court too, without considering all these facts, dismissed the appeal filed by the petitioners vide order dated 15.7.2017 which cannot be sustained in wake of the aforesaid contentions and is liable to be set aside.

Per contra, learned A.G.A. has opposed the petition by contending that the learned Sub Divisional Magistrate, Bijnore has passed the impugned orders on the basis of the procedure as prescribed under Chapter VIII of the Cr.P.C. As the petitioners, during the period for which they had executed the bail bonds, committed offence under Sections 147,148,149,452,307 and 504 I.P.C., their bail bonds were rightly forfeited by the learned Sub Divisional Magistrate, Bijnor, and the learned lower appellate court rightly dismissed their appeal. There is no illegality in the orders impugned requiring any interference by this Court.

Considered the rival submissions made by the learned counsel for the parties.

The procedure regarding Security for keeping the peace and for good behaviour has been elaborately dealt with under Chapter VIII of the Code of Criminal Procedure. Some relevant provisions are reproduced below:-

Section 107 (1) Cr.P.C. provides as under:

"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 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, [with or without sureties,] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit."

Section 116 (3) Cr.P.C. provides that 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 tranquillity 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.

Section 122 (1) (b) Cr.P.C provides that if any person after having executed a 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.

Thus a detailed procedure has been provided in the Cr.P.C. for execution of bail bonds. So far as the forfeiture of bail bonds is concerned, Section 122 (b) Cr.P.C. provides that such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.

Section 446 Cr.P.C. provides for the procedure when bond has been forfeited, according to which:- (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation.- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code.

Thus, according to the procedure prescribed under the aforesaid sections if there is any breach of condition to keep peace and maintain good behaviour by a person who has executed a bond, the Magistrate has power to forfeit the personal bonds furnished by the aforesaid person and to realize the amount as arrears of land revenue if he does not pay it.

The learned appellate court has dismissed the appeal of the petitioners on the ground that on 05.6.2013 the appellants had executed a bond for keeping peace for six months. However, on 06.9.2013, they committed an offence in utter defiance of the bonds executed by them, for which a criminal case under Sections 147,148,149,452,307 and 504 I.P.C. was registered against them, therefore, their bonds were forfeited under Section 122 Cr.P.C and consequential order was also passed.

Considering all the facts and circumstances of the case, there does not appear any illegality or irregularity in the orders impugned.

The writ petition is liable to be dismissed and it is accordingly dismissed.

Order Date:- 07.12.2017-SB