Samad Khan vs State of Chhattisgarh and Another

T.P. Sharma, J.—The applicant has filed this petition for quashment of the crimina1/ preventive proceeding in Criminal Case No. 214/2002 pending before the Sub Divisional Magistrate, Balod whereby the Sub Divisional Magistrate vide order dated 7-9-2002 has initiated the proceedings u/s 110 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'').

The order is challenged on the ground that without following the procedure prescribed and without passing any preliminary order u/s 111 of the Code or without passing any order under Sub-section (3) of Section 116 of the Code, the Court below has passed the order sending the applicant in jail and afterwards released him on bail and thereby committed an illegality.

I have heard learned Counsel for the parties.

Learned Counsel for the applicant submits that in case of proceeding u/s 110 of the Code, passing of preliminary order u/s 111 of the Code is sine qua non and in case of any emergency, the Court below was competent to pass an interim order in terms of Sub-section (3) of Section 116 of the Code for execution of bond for good behaviour and maintaining the peace, but in this case the Court below has not passed any order u/s 111 of the Code and without passing any order u/s 116 (3) of the Code the Court below has directed to send the applicant in jail and subsequently, the applicant has been released on bail.

On the other hand, learned Counsel appearing for the State opposes the submission made by learned Counsel for the applicant and submits that the Court below has rightly initiated the proceedings against the applicant.

From perusal of the copy of order impugned and other documents, it reveals that the Sub Divisional Magistrate, Balod has initiated proceedings u/s 110 read with Section 116 of the Code against the applicant and has mentioned in his order-sheet that show-cause notice be issued and in the absence of surety the petitioner be sent to jail and when surety was produced on behalf of the petitioner, he was released on bail. Order impugned shows that the Court below has not passed any preliminary order u/s 111 of the Code, which is sine qua non for initiation of the proceedings u/s 110 of the Code and Sub-section (3) of Section 116 of the Code.

Section 111 of the Code reads as under:

Order to be made.- When a Magistrate acting u/s 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.

In case of any emergency or for immediate measures for the prevention of breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, the Court is competent to pass any order to execute a bond, with or without sureties for keeping the peace or maintaining good behaviour, till disposal of the case, but in the present case, the Court below has neither passed any order u/s 111 of the Code nor passed any order under Sub-section (3) of Section 116 of the Code.

Patently, the Court below has committed illegality resulting into miscarriage of justice. Such order is not sustainable and deserves to be allowed and it is hereby allowed and the order dated 7-9-2002 is hereby quashed.