UDAYANATH PRADHAN AND 7 ORS. Vs. STATE AND ANR.
HIGH COURT OF ORISSA
Udayanath Pradhan And 7 Ors.
State And Anr.
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G.K.Misra, J. -
(1.) THE history of the case may be stated in short : Petitioner No. 1 and ten others were proceeded against under Section 107. Code of Criminal Procedure on the complaint of Khalli Pradhan (0.P. No. 2). In the notice under Section 112, Code of Criminal Procedure five overt acts were alleged which are reproduced from paragraph 2 of the appellate judgment as follows:
(1) On the night of 28 -1 -196 the Appellants held a meeting at the village school to chalk out plans for committing unlawful acts in relation to p.w. 1 and this was reported by p.w. 1 to the police on 29 -1 -1969 (Ext. 1);
(2) On 3 -2 -1969, a report was lodged generally alleging acts of nuisance and mischief including letting their cattle graze on the fields of p.w. 1, holding of meetings and holding out threats of looting (Ext. 3), No dates of the overt acts were mentioned.
(3) On 4 -2 -1969, a similar report was lodged about meetings and threats of assault without mentioning the dates (Ext. 2).
(4) On 4 -3 -1969, another report in general terms with no date was lodged (Ext. 4).
(5) On 19 -3 -1969, the Appellants let loose their cattle, who are away the reaped crop of p.w. 1 and on his protest the Appellants threatened to assault him. The report was lodged on the same day (Ext. 5).
The Petitioners and three others (who are members of the second party) showed cause. Their case was that opposite : party No. 2 is a rich man of the village and to harass the members of the second party he got several false station diary entries made. After cause was shown, the Petitioners were called upon to furnish interim bonds to keep peace under Section 117(3) Code of Criminal Procedure, on 23 -12 -1970.
Criminal Revision No. 105/71 filed by the members of the second party against the order directing execution of interim bonds was summarily dismissed in the High Court. Criminal Misc. case No. 88/ '11 was filed in the High Court for review. It was dismissed with the observation that; the Magistrate would reconsider the Petitioners ' application to file fresh affidavits against the station diary entries. On 26th of November, 1971, the Magistrate passed an order again calling for interim bonds on the basis of station diary entries. Criminal Revision No. 754/71 was filed by the members of the second party against this order of the Magistrate. As in the meantime the Supreme Court gave some decisions that interim bond cannot be taken without the Magistrate proceeding to make the inquiry, this Court directed that the 107 proceeding pending with the Magistrate should be disposed of within six weeks. By order dated 14 -4 -1972 the Magistrate bound over all the members of the second party directing each one of them to execute a bond for Rs. Five hundred to keep peace for a period of one year. Against that order Criminal Appeal No. 56/72 (G) was filed before the Sessions Judge, Ganjam Boudh, which was ultimately heard by the Additional Sessions Judge. On 14 -8 -1973 he affirmed the order of the Magistrate against the Petitioners and allowed the appeal against three members of the second party.
The Criminal Revision has been filed by the Petitioners against this order.
(2.) THE leaned Additional Sessions Judge after thorough discussion of the evidence held that the overt acts referred to in the notice issued under Section 112, Code of Criminal Procedure had not been established. He further held that the subsequent reports made in Exts. 7, 8, 15, 16 and 20 were not acceptable. These two findings have not been assailed by the opposite parties. The position, therefore, is that the prosecution failed to establish the overt acts and the subsequent reports brought into the case by way of evidence to show that breach of peace was apprehended from the Petitioners. The learned Additional Sessions Judge, however, confirmed the order of the learned Magistrate calling upon the Petitioners to execute a bond on the basis of certain litigations which had been brought into evidence. It would be profitable to extract the conclusion of the learned Additional Sessions Judge in his own words:
Para : 10 : The State places entire reliance on this series of litigation to base its contention thereon that there is bad blood between the parties, tension in the village and apprehension of breach of peace. An important point to notice is that though the present proceeding was started in 1969, even thereafter at least three of the aforesaid cases, viz. G.R. Case Nos. 629/69, 116/70 and 643/70 were instituted. It is not quite relevant for the present purpose to enter into the merits of these cases. The acquittals may have been for a variety of reasons. In any event, against one acquittal by this Court in appeal, the revision has been admitted and one conviction has been maintained in this Court in appeal. As already stated, the fact that so many cases came to be instituted despite pendency of this proceeding is sufficient material for the Court 's satisfaction as to apprehension of breach of peace. Significantly, after interim bonds were taken and the order in that behalf passed by the learned Magistrate was confirmed by the Hon 'ble High Court, there is no further incident brought to the notice of the police or Court. This is an important factor which cannot be lost sight of. In the circumstances there is enough justification to ask for bonds for good behaviour.
It would thus apart that the learned Additional Sessions Judge called upon the Petitioners to execute bonds only on account of certain litigations existing between the parties. It would, therefore, be appropriate to refer to each of those cases with their results separately. Those cases are:
(i) G.R. Case No. 71/69 : It was on the basis of an allegation of that of a tree from the Bari of p.w. 1. The offence was under Section 379. Indian Penal Code. The accused therein had been acquitted. Against the order of acquittal Criminal Revision No. 185/73 was dismissed by the High Court on 13 -11 -1973.
(ii) G.R. Case No. 629/69 : It was under Section 379, Indian Penal Code. The allegation was that some of the Petitioners committed theft of cocoanuts from the tope of p.w. 1 before the initiation of 107 proceeding. All the accused were acquitted in that case.
(iii) G.R. Case No. 116/70 : It was also under Section 379, Indian Penal Code. The allegation was that the accused therein had committed theft of green -gram crop of p.w. 1. All the accused persons had been acquitted.
(iv) G.R. Case No. 643/70 : It was a case under Section 448, Indian Penal Code, against two persons one of whom is a party to the 107 proceeding. Each of the accused was fined Rs. Fifty. Cr. Revision No. 328/73 against the conviction and sentence is pending in the High Court.
It would thus be seen that all these four cases were instituted at the instance of p.w. 1 and excepting one, in which one of the Petitioners has been convicted in the Criminal Revision pending in the High Court, all other cases ended in acquittal.
(3.) THE question for consideration is whether mere filing of some criminal cases, at the instance of one of the parties to the 107 proceeding most of which ended in acquittal, would constitute the basis of calling upon the Petitioners to execute a bond for good behaviour.;
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