JAIN, J - (1.) THE facts of this petition are that the petitioner Bashir was arrested by the police on 28-6-75 under sec. 151 Cr. P. C. But there is no record of his arrest, However, he was present, perhaps brought by the police, in the court of the City Magistrate, Jodhpur on the same day when the police filed a complaint against him, under sec. 107 Cr. P. C. THE substance of the complaint was that the accused had formed a group and with its help is always ready to enter into a brawl. He is a quarrel some fellow first rate and enjoyed such reputation. Three cases under secs. 147, 452, 323, 440 and 324 I. P. C. have already been registered and challaned against him. A complaint under sec. 107 Cr. P. C. was filed against him on 1912-73. Another case under sec. 110 Cr. P. C. was also instituted against him on 16-12-74. THE police requested the magistrate that in the interest of maintenance of peace it was necessary to bind him in an appropriate amount. THE Sub-inspector also appended an unsworn affidavit along with his complaint.
(2.) THE learned magistrate made a conditional order dated 28. 6. 75 under sec. 111 Cr. P. C. requiring him to show cause why he should not be bound down in the amount of Rs. 5,000/- with similar surety for a period of six months. THE learned Magistrate then read and explained his order to him. THE petitioner did not plead guilty and the magistrate fixed 10-7-75 for further proceedings but at the same time the learned magistrate purporting to act under sub-sec. (3) of sec. 116 observed that there was emergency imposed in the country, the petitioner was a 'badhmash' and a dangerous man and there was immediate danger of breach of peace and directed him to furnish interim bonds and surety in the aforesaid amount. The petitioner then submitted the requisite bonds. But the learned magistrate was not satisfied with the pecuniary position of his surety, sent the same for verification by the Tehsildar and remanded the petitioner to judicial custody. On 10. 7. 75 the petitioner produced another surety but the learned magistrate did not take any action thereon and adjourned the case saying he was busy in some other urgent work, and fixed 17-7-75 as the next date. However, on 11-7 75, the learned magistrate verified the interim bonds and further demanded and verified bail bonds for the appearance of the petitioner. After this he was released from judicial custody the same day. On 17-7-75 the learned magistrate directed that witnesses be summoned even though no list of witnesses was appended by the police along with their complaint. Meanwhile, the petitioner Bashir filed an appeal in the court of session, Jodhpur against that part of the order of the learned magistrate dated 28. 6. 75 by which his surety was not accepted by the learned magistrate. The learned Sessions Judge set aside the order of the Magistrate in so far as it related to the direction for verification of solvency of the sureties. He also directed the Magistrate to take immediate decision this way or that way regarding the sufficiency of the surety bonds. The order of the learned Sessions Judge is dated 2. 7. 75 He also decided certain contentions raised before him. He did not accept the contention that no surety can be asked for under sec 107 Cr. P. C. He also rejected the contention that before an order under sub-sec. (3) of sec. 116 Cr. P. C. is passed, an inquiry under sub-sec. (1) is a must. According to him, an inquiry began either when an order under sec. 112 is read or is explained or when a person appeared after service of the summons or warrant under secs. 113 and 114 Cr. P. C. Aggrieved by all the aforesaid proceedings, the petitioner has filed this petition under sec. 482 Cr. P. C. It was firetly contended by the learned counsel for the appellant that the order of the learned magistrate was illegal in as much as he was asked to furnish surety in proceedings under sec. 107 Cr. P. G. which provides only for execution of a bond. The learned Public Prosecutor on the other hand relies upon the provisions of sec 111 which provides for setting forth in the order the number, character and class of sureties. He further pointed out that sub sec. (3) of sec. 116 Cr. P. C. which lays down that after the commencement, and before the completion of the inquiry under sub-sec. (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbances of the public tranquility 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 an order under sec. 111 is made, to execute a bond with or without surety for keeping the peace or maintaining good behaviour until a conclusion of the enquiry and may detain him in such custody until such bond is executed or in default of such execution, until the inquiry is concluded. He urged, as was also held by the learned Sessions Judge, that at least in case of interim bonds surety can also be demanded by the magistrate. But this argument is not correct because the proviso (b) of sec. 116 (3) further lays down that the conditions of such bond whether as to the amount thereof or as to the provisions of sureties or the number thereof or pecuniary extent of their liability shall not be more onerous than those specified in the order under sec. 1ll Cr. P. C. which cannot be made otherwise than in accordance with the principal provisions contained in sec. 107 Cr. P. C. It will be noticed that the Code of Criminal Procedure, 1973 has done away with the previous provision of giving surety bond in a case under sec 107 Cr. P. C. If no surety can be asked for u/s. 1ll Cr. P. C. in a case under sec. 107 then, in virtue of the express provision contained in proviso (b) to sub-sec. (3) of sec. 116, no surety bond can be asked even for the inquiry period. The surety bonds which are mentioned in sec 111 and in sub-sec, (3) of sec. 116 relate to proceedings under secs. 108, 109, and 110 Cr. P. G. and not to those under sec. 107. The new code has made this distinction that surety bonds will be required when a person is bound for good behaviour but not just for keeping the peace. I therefore, agree with the contention that the learned Magistrate while noting u/s 107 was absolutely in the error when he demanded a surety bond by his order made under sec 111 Cr. P. C. He repeated his mistake by asking a surety bond for the interim period.
(3.) THE learned counsel then contended that interim bonds can be taken only after the commencement and before the completion of the inquiry. It was urged that when the order for interim bond was made on 28 6-75, no inquiry had commenced. THE argument is deduced from the wordings of sub-sec. (1) of sec. 116. It provides that when as order under sec. 1ll Cr. P C. has been read, or explained, or appears or is brought before the magistrate, he shall proceed to enquire into the truth of the information upon which action is being taken and to take further evidence as may appear necessary. Such inquiry shall be made as early as may be practicable in the manner prescribed for conducting the trial and recording evidence in summons cases. Commencement of the inquiry therefore, means commencemnt of an inquiry according to the summons procedure and the Magistrate should have made some effort to get some statement recorded. If nothing of this kind is done, the order is illegal. Reliance was pieced upon Madhu Linayc vs. Ved Murti (1 ). Since no witness was examined in this case, no inquiry had commenced so as to give jurisdiction to the Magistrate to ask for interim bonds. Now, the procedure for summons trial is contained in sec. 251 to 259 of Chapter XX of the Code of Criminal Procedure. In such trial the particulars of the offence are stated to the accused when he appears or is brought before the Magistrate. He is then asked whether he pleads guilty or has any defence to make. The trial therefore, in a summons case commences when the particulars of the offence are stated to the accused. In proceeding under chapter VII, an order under sec. 1ll Cr. P. C. is read over and if desired, explained to the person concerned, if he is present before the magistrate. If he is not so present, then, his presence can be secured either through summons or warrant which shall be accompanied by a copy of the order. In either case, he gets acquainted with the particulars of the order, which contains the substance of the information, and if he admits the truth of the information then action under sec. 117 may be taken. In case he does not admit or refuses to admit the truth of the information then, the magistrate is required to proceed to enquire into the truth of the information on which action has been taken and to take such evidence as may appear necessary. The Magistrate, if he finds upon inquiry that the information is not true, he may discharge the person but it he finds that the truth of the information has been proved, then he can proceed to take action under sec. 117 Cr. P. C. The decision of the Supreme Court in Madhu Limaye's case was given before the Code was amended. In the old Code in the corresponding sub sec. (3) of sec. 117, the words were "during the inquiry" while the new Code opens with the words "after the commencement and before the completion of the inquiry". Though in substance it makes little difference, but it certainly makes it clear that interim bonds can be asked for as soon as the inquiry commences. I therefore, reject the contention that the inquiry begins when evidence begins to be recorded. In this case the substance of the information was read over to the petitioner and he did not admit the truth thereof and the trial commenced as soon as he refused to admit. Therefore, it is obvious that the magistrate had enquired the jurisdiction for directing him to execute the interim bonds. The learned counsel for the petitioner next contended that there were no grounds for the magistrate lor taking action under sec. 116 (3) Cr. P. C. and therefore his order was in contravention of law. The learned counsel in order to support his contention invited my attention to Vithal Chhana vs. The State (2) wherein it appears to have been held that the magistrate while taking immediate measures must state the ground upon which he arrives at the conclusion that such measures are necessary. Unless he does so, it cannot be said that the magistrate has given a careful consideration to the question whether such a situation exists or does not exist. I agree that the requirement of the law is that before directing a person to execute interim bond, the magistrate must state the reasons in writing Here in this case the magistrate has certainly stated the reasons for his consideration the sufficiency of which it will not be appropriate for him to examine but the magistrate does not appear to have violated the provisions of sub-sec. (3) of sec. 116. It was then pointed out that the magistrate failed to appreciate the meaning of the words "if he considers that immediate measures are necessary" occurring in the said sub-section. The use of the word 'consider' shows that the magistrate is required to apply his mind. The petitioner is a poor man plying a 'thela' but the magistrate did not case to scrutinise the police report, nor did he care to see if any witness was cited who could come and say that the accused had formed a party or had fought with any person or is of quarrelsome nature. Even the unsworn affidavit of the Sub-inspector of Police was not taken into consideration by the magistrate. There was thus no record before him to say that any immediate measures were necessary. Careful consideration should have been to the existence or otherwise of the situation contemplated in the sub-section and an order cannot be passed on mere police suspicion or on a mere statement that the report of the police officer indicated a likelihood of a breach of the peace. In Madhu Limaye vs. S. D. M. Monhyr (3) it was observed that if the magistrate has not made any efforts to enquire into the truth of the allegations and adjourns the case from day to day and yet asks for an interim bond and places a man in custody for default, it becomes entirely one sided. Without an inquiry into the truth of the information sufficient to make out a prima facie case, a person can not be permitted to be sent to jail if he does not furnish the interim bonds. To my mind, as far as the facts of this case are concerned, the Magistrate has given a careful consideration and has stated the reasons for doing so. If he came to the conclusion that immediate measures are necessary and records the reasons therefore, then, it will not be proper to go into the sufficiency of the material which was considered by him. By and large this consideration shall almost always be a subjective aspect only. But I must indicate strong disapproval of this court of way the petitioner was remanded to custody pending verification of the solvency of the surety by the Tehsil. Even if one could overlook the fact that surety bonds were asked for in ignorance of the current position of law, it is difficult to countenance the facts that the petitioner was not given any time to have the solvency verified by the Tehsil nor were the bond sent to the Tehsil for that purpose by the learned Magistrate. It was only nine days after the learned Sessions Judge directed not to defer the verification of surety bonds and the petitioner produced a new surety, that he could be released on 11. 7. 75. petitioner ;