ABDUL HAMID Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against an order of the Sub-Divisional Magistrate, Hajipur, by which he passed an order under section 116 (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), directing the petitioner who was opposite-party in a proceeding under section 107 of the Code before him to execute ad interim bond of Rs. 1,000 with two sureties of the like amount each for keeping the peace until the conclusion of the enquiry.

(2.) The relevant facts are these :

(3.) Learned counsel appearing on behalf of the petitioner urged before me that the learned Magistrate acted illegally in passing the order under section 116 (3) of the Code for execution of interim bonds because the stage for making that order had not reached under the scheme of the Code. In my opinion, this contention is correct and must prevail. I must state that on 15.7.1974 when the order was passed not only no evidence bad been adduced, but the petitioner bad not even shown cause. The circumstances and the stage at which the order for interim bond under section 117 (3) of the Criminal Procedure Code, 1898 which corresponds to and is in part materia with the provisions of section 116(3) of the Code were considered by the Supreme Court in two cases in both of which Madhu Limay was the petitioner and judgments were delivered on the same date. In Madhu Limaya v. Sub-Divisional Magistrate, Monghyr, (1972 (1) SCA 45) the constitutional validity of various provisions, including the provisions contained in sections 107 and 117 of the Code was challenged and in that connection their Lordships of the Supreme Court had to construe section 117 of the old Code. After pointing out that the first sub-section read with the second requires the Magistrate to proceed to enquire into the truth of the information upon which action has been taken and an order under section 112 of the Code passed and that the third sub-section enables the Magistrate to ask for an interim bond pending the completion of the enquiry by him, Hidayatullah, C. J., proceeded to consider the question whether the Magistrate can defer the enquiry and yet ask for interim bond. His Lordship observed :