Mohan Parmanand Khatri vs Shri M.G. Ingle, P.S.I. Khopade ...
2003 Latest Caselaw 190 Bom

JUDGMENT

L.G. Chitre, J.

1. Heard.

2. Shri Manoj Mohite submitted that the police officer concerned was very much under the thumb of one Gajwani who was an anti-social element and on account of the said Gajwani, PSI Khopade initiated the said chapter proceedings. In support of his contention, Shri Manoj Mohite read out the complainant which was mae by him to the Commissioner of Police, Thane District, Thane on 17.2.1998 wherein specific allegations were made against Shri Khopade in context with the said Gajwani and the chapter case which was to be initiated against the present petitioner.

3. Shri Manoj Mohite submitted that in the notice which has been issued to the present petitioner in view of Section 111 of the code of Criminal Procedure, 1973 (hereinafter referred to as the Code for convenience), it ha been mentioned that two non-cognizable complaints were registered against the petitioner, one bearing no. 594/97 which was connected with offences punishable under Sections 323, 504, 506 pertaining to Vithhalwadi Police Station and another non-cognizable case was registered bearing No. 20/93 connected with offences punishable under Section 506(2) and Section 25 of the Police Act. He submitted that these two complaints were not sufficient enough for initiating a proceeding against the present petitioner in view of Section 110 of the Code.

4. Shri Saste opposed the submissions advanced by Shri Manoj Mohite and justified the action which was taken by the Special Executive Magistrate, Vitthalwadi in connection with the said chapter proceedings.

5. Section 110 of the Code empowers the Executive Magistrate to obtain security for good behaviour from habitual offenders. It empowers him to get the security for good behaviour from such persons who are in the habit of doing the things mentioned in sub sections of the said section. So far as the present application is concerned, it would be necessary to look to provisions of Section 110 (e) and (g). Section 110 (e) and (g) authorises such executive magistrate to take the security for good behaviour from the persons who habitually commit or attempt to commit, or abet the commission of, offences, involving a breach of the peace, or are so desperate and dangerous as to render their being at large without security hazardous to the community. In this context the word "habit" has to be understood in proper perspective. "Habit" connotes that person should be committing such acts recurrently so as to allow a reasonable person of reasonable prudence to come to a reasonable conclusion that he is in the habit of committing such acts. Stray incidents would not permit a legitimate inference or conclusion of "habit". "Habit" indicates that the person should be addicted to commission of such acts and it should be his habit to commit such acts. Unless there is material on record to show that such person is in the habit of committing such acts, the executive magistrate would not be entitled legally to ask such person to furnish the bond of good behaviour.

6. So far as Sub-section (g) is concerned, the behaviour of such person should be sufficient enough to indicate that he is a desperate person and likely to commit the acts which have been mentioned in Section 110 of the Code. One should be sure that in all probabilities he would be committing such acts irrespective of prudence prevailing on him or any restraint in his behaviour. There should be material on record to show that he is so dangerous to the society that his being at large would be dangerous to the society as such in respect of the acts indicated by Section 110 of the Code. The words "desperate" and "dangerous" should be understood in proper perspective. They are not to be used irrationally, loosely and for the purpose of curtailing liberty of the citizens.

7. Furnishing the bond of good behaviour causes a social stigma and that cannot be forgotten. It should not be taken lightly. Without any justifiable cause or ground, a citizen should not be asked to furnish the bond of good behaviour in a democratic republic wherein his liberty, his status has been guaranteed by the constitution. His fundamental rights should not be humiliated or molested on insufficient material and he should not be put to a social stigma or embarrassment. Asking a citizen to furnish a bond has to be taken with its proper significance.

8. In the present case, the petitioner has merely protested the acts of PSI Khopade by asking Mr. Manoj Mohite, Advocate, to make a complaint to the Commissioner of Police, Thane. It is presumed that a lawyer acts with all responsibility and, therefore, there would be a presumption that Mr. Manoj Mohite, Advocate, must have though it fit to make a complaint at his own instance for his client, the present petitioner. Had he been not satisfied about the grievance of the petitioner which was expressed to him, he would not have made such a complaint in writing with his name on his letter head sheet. That has to be given due importance.

9. Thus, the sum and substance would be that there was no sufficient material to issue such a notice to the petitioner and, therefore, the said notice will have to be quashed by exercising jurisdiction and power indicated by provisions of Section 482 of the Code and Article 226 of the Constitution of India.

10. Thus, this criminal application stands allowed and the said notice stands quashed.