S. S. Ahmad, J. - (1.) THIS is a petition under Article 226 of the Constitution in the nature of habeas corpus by which the petitioner has challenged his detention in the District Jail, Lucknow.
(2.) NOTICE of this petition was issued to the opposite parties vide order dated 6th January, 198b to the following effect :- "Let a copy of this petition be supplied to the Govt. Advocate today who represents opposite parties nos.1 to 11. Put up this petition for orders on 7-1-86. Opposite parties are directed to produce the petitioner in Court on 7-1-86. Let a copy of this order be communicated to the District Magistrate, Lucknow, Senior Superintendent of Police, Lucknow, Superintendant of Police, Lucknow, City Magistrate, Lucknow and the Superintendent District Jail, Lucknow." The Sub-Divisional Magistrate, Lucknow has appeared in person before us and has produced the original record from which the following tacts emerged :- (a) On 3rd January, 1986 a report was submitted by Sri Bhup Singh, Inspector Incharge Police Station Qaiserbagh at 4.30 P.M.. that the petitioner along with 34 others including Ram Chandra Misra, Sunil Kumar Singh, Ramendra Verma, Kuldip Singh, Ahsan Abbas and Vishambhar Singh had been making inflammatory speeches within the precincts of the Collectorate, Lucknow. Abuses were hurled at the employees of the Collectorate and the lawyers present there were exhorted by the petitioner and his associates to assault the employees and chase them away. The employees had collected in another portion of the Collectorate lawn. They were obecting to the use of abusive language by the lawyers, the destruction of the Government property and the " marpit " resorted to by the lawyers. The officers who were also present at the spot tried to pacify the employees who concluded their meeting but the petitioner and his associates did not pay any heed and continued to deliver inflammatory speeches over the microphone as a result of which a tension was generated and the situation became explosive. The City Magistrate declared the assembly of the lawyers illegal and asked them to leave the place. They refused and then they were arrested under Section 151 CrPC. (b) That report was placed before the Sub-Divisional Magistrate, Lucknow on 4th January, 1986 and he passed the following order :- I am satisfied from the report that there is apprehension of breach of peace. Let a case be registered under Section 107 CrPC against opposite parties ana proceedings initiated against them. " (c) Thereafter an order against the above persons was passed by the Magistrate under Sections 107/111 CrPC, It will be useful to reproduce this order in its entirety :- Thana Adhyaksh Kasierbagh ki chalani report dinank 3-1-86 dwara mujhe pratit karaya gaya hai ki uprokt vipashigan dinank 3-1-86 ko samai lagbhag 4.30 baje sain collectory kutchery ke prangan me loud speaker lagakar pradarshan kar rahe the tatha collectorate ke karmachariyon ke virudh apshabdon ka pravog kar rahe the aur Shri Prakash Avasthi va unke sathi vakla sahban collectorate ke karmachariyon ko mar kar bhaga dene hetu lalkar rahe the jisese stithi atyant tanaopurna ho gai aur vipakashigan ki ore se puri shanti bhang hone ke sambhawana utpan ho gai. Mai uprokt police report se santusth hun ke uprokt vipakshigan ke ore se shanti bhang hone ki sambhawana hai. Atha mai A. K. Singh Pargana Magistrate Lucknow etat dwara ukta vipakshigan ko nirdesh deta hun ke we sandarshit karen ke kuy na ek varsh tak janparishanthi banye rakhney hetu unsey 2000/- ka vayaktigat bandhnama tatha etmhi dhanrashi ke do-do prathibhu liye jayen. Aaj dinank 4-1-1986 ko mere dwara hastakchar evum navalaya ki mudra se prasarit keya gaya. Hastakchar 4-1-1986 Time 1.45 A.M. [ A. K. Singh ] Pargana Magistrate, Lucknow Adesh vipakshigan ko parhkar sunaya tatha samjhaya gaya. Hastakchar 4-1-1986 Time 1.45 A.M. [A. K. Singh] Pargana Magistrate, Lucknow. (d) It is said that this order was read out to the above persons many of whom had signed on the margin of the order in token of their having read it but two of the endorsements, one made by the petitioner and the other by one of his colleagues may be reproduced below :- " 4 1/2 baje griftar kiya gaya tatha mauke par 144 lagane ki ghoshna ke gai. Sabha ko gair kanune ghoshit karne ka natak keya gaya tatha os samaya Shri A. K. Singh, Shri Trivedi sabhi maujud the. Koye Apattijanak nare addi nahi lagaye. NOTICE ke tathya galat hai. Shri R. N. Trivedi ke khilaf bhrashtachar ka andolan chal raha hai tatha C. M. ko smrit patra ek din diya gaya tha. Hastakchar [ Prakash Awasthi ] At 2 P.M. " Shri Maan ji police line manoranjan kaksh me notice 2 baje rat me sunaye gaye tatha do jamanat va muchelke dakhil karne ka adesh hua jiska prabandh es samya bona asambhava hai. Hastakchar [ A. Abbas ] (c) By the above order the petitioner was required to show cause why he should not be required to furnish a personal bond of Rs. 2000/- and two sureties each in the like amount for keeping peace for one year. ( f ) It is not disputed by the Sub-Divisional Magistrate who is present in person that this order was passed at Police Lines at 1.45 A.M. (g) Shortly thereafter the Sub-Divisional Magistrate recorded the statement of the Inspector lncharge, Sri Bhup Singh, which may at be reproduced in its entirity :- " Dinank 3-1-86 ko vipakshi no. 1, 7, 8, 17, 23, 31, 35 ke virudh anya vipakshiyon ke sath chalani report dhara 107/106, Da. Pra. Sa. ke antargat bheji gai hai. Vipakshi no. 1, 7, 8, 17, 23, 31 tatha 35 ke virudh dinank 3-1-86 ko thana Kaiserbagh par collectorate Lucknow me tor phord tatha marpit ke vardat ke adhar par pratham suchna report bhe ankit ke gai thee. Ukta vipakshi sesh vipakshiyon ke aguvayee kar rahe hai aur es bat ki puri sambhawana hai ke agar vipakshi no 1, 7, 8, 17, 23, 31 tatha 35 ko dauran karyawahi shanti banaye rakhene ke liye pabandba na kiya gaya to ye turant shanti bhang kara sakte hain. Atha vipakshi no 1, 7, 8, 17, 23, 31 tatha 35 ko dauran karyawahi shanti banye raknne ke liye paband kiya jai. Vipakshiyon ne jiraha nahi ke. Parhkar tasdik kiya. Hastakchar 4-1-1986 " (h) Thereafter the Magistrate passed an order under Section 116 (3) CrPC to the following effect :- Adesh Aaj dinank 4-1-86 ko thana Adhyksh Kaiserbagh ke report dinank 3-1-86 se is bat ki santushthi hone par ke vipakshi no. 1 se 35 tak se shanti bhang hone ki sambhwana hai, unke virudh dhara 107/116 Da. Pra. Sa. ke antargat karyavahee prarambha ke gai Uneh dharaa 111 CrPC ke antargat notice parkhar sunyai gai. Sabhi vipakshiyon ne shanti bhang hone ke sambhawana sey in kar kiya. Prabhari Nirikshak Kaiserbagh thana ke bayan dinank 4-l-8b ko ankit kiya gaya. Apne ba>an mem unobone kaha hai ke vipakshi Sarva Shri Prakash Awasthi, Ram Chandra Misra, Sunil Kumar Singh, Ramendra Varma, Kuldeep Singh, Ehsan Abbas tatha Vishambhar Singh shesh vipakshiyon kl aguvayee kar rahe hai aur unhe shanti bhang karne ke liya lagatar uksa tahe hain. Unke virudh thana Kaiserbagh mai dinank 3-1-86 ko pratham suchana report ankit ke gai hai jismen collectorate Lucknow me tor-phord tatha marpit keya jane ke karan unke virudh mukadma apradh sankhya 5/86 kayam kiya gaya. Prabhari Nirikshak ne es bat ki ashanka vyakt kiya ke in vipakshiyon ko dauran karyawahee shanti banye rakhne ke liya paband na kiya gaya to turant shanti bhang ho sakti hai. Mai Prabhari Nirikshak ke bayan se santust hun ke lok shanti banye rakhne ke liya turant karyawahee kiya jana avashyak hai aur es pusthi se in vipakshiyon ko dauran karyavahee shanti banye rakhne ke liye paband kiya jana upyukta hai. Athah adesh dia jata hai ke vipakshigan Sarva Shri Prakash Awasthi, Ram Chandra Misra, Sunil Kumar Singh, Ramendra Verma, Sardar Kuldeep Singh, Ehsan Abbas tatha Vishambhar Singh, dauran karyavahee shanti banye rakhne ke liya pratake Mublig 2000/- rupaya do hajar ka vyaktigat bandhnama tatha etni he dhanrashi ke do-do jamanate dakhil karien. Jab tak ukta vipakashigan bandhname tatha muchelka dakhil na karam tab tak unhe zila karagar mein nirudh rakha jayaga. Hastakchar 4-1-86 [ A. K. Singh ] Pargana Magistrate, Lucknow It is on the basis of the above orders that the opposite parties have tried to justify the detention of the petitioner. An action under Section 107 of the Code of Criminal Procedure can be initiated by an Executive Magistrate on the information that the 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. Sub- section (1) of Section 107 of the Code may be quoted below :- ' 107 (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 hereafter provided, require such person to show cause why he should not be ordered to execute a bond for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. "
(3.) THE provisions quoted above require the person proceeded against to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping peace for such period, not exceeding one year, as the Magistrate thinks fit. THE manner in which the Magistrate is to proceed in the matter has been indicated in the subsequent provisions of the Code to whieh a reference shall be presently made. Section 111 of the Code of Criminal Procedure lays down as under :- " 111. 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. " Section 112 of the Code provides as under :- " 112. If the person in respect of whom such order is made is present in Court, it shall be read over to him, or if he so desires, the substance thereof shall be explained to him. " Sub-sections (1), (2) and (3) of Section 116 of the Code provide as under :- " 116 (1) When an order under Section 111 has been read or explained under Section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrants, issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases. (3) 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. " ;