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Judgment
Prafulla C. Pant, J.—Urgency application no. 815 of 2012 is allowed.
Heard.
By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has challenged the order dated 26.11.2011, passed by Sub Divisional Magistrate, Rishikesh, u/s 107/116 Cr.P.C..
Learned counsel for the petitioners submitted that the impugned order dated 26.11.2011 (copy annex. 4 to the petition) is passed by the Magistrate without application of mind. Attention of this Court is drawn to sub section (3) of section 116 Cr.P.C.,which requires the Magistrate after he had satisfied himself as to the fact that it was necessary for prevention of breach of peace to record reasons in writing before requiring a person to execute a bond of good behaviour.
In reply to this, learned counsel for the State argued that notice was issued (copy annex. 3 filed with the petition) by the Magistrate after due compliance of the relevant provision of Law.
However, it is evident that the notice appears to have been issued in pursuance to order passed u/s 116(3) of Cr.P.C.. Said provision requires the Magistrate to record reasons in writing before directing a person to execute a bond for prevention of breach of peace. No such reasons are mentioned in the order dated 26.11.2011, passed by the Magistrate on the file.
It is also pointed out on behalf of the petitioners that suit no. 106 of 2011, Smt. Chitra Giri vs. Smt. Sharda Giri is already pending before Civil Judge (Sr. Div.) Rishikesh, in which the court has already granted temporary injunction in favour of the petitioners relating to dispute between the parties in respect of property situated in khata no. 237 khasara no. 49a (M) situated in Mauza Raiwala, Tehsil Rishikesh.
Admit the petition.
Learned counsel for the State prays for, and is allowed six weeks'' time to file the counter affidavit.
Issue notice to respondent no. 2 Sharda Giri who may also file her counter affidavit within a period of six weeks.
Having heard learned counsel for the petitioners, and learned counsel for the State, as an interim measure, it is directed that operation of the order dated 26.11.2011, passed by the Sub Divisional Magistrate, Rishikesh, in case no. 80 of 2011, u/s 107/116 Cr.P.C., is stayed until further orders of this Court.
List after six weeks.