Istkar v. the State of Uttar Pradesh & Anr.
DINESH MAHESHWARI, J.
Leave Granted.
2. Though a short question as regards forfeiture of the bond
furnished by the appellant in terms of Section 107 of the Code of
Criminal Procedure, 1973 1 and the amount payable thereunder is
involved in this matter but, having regard to its implications, we deem
it appropriate to dilate on the relevant aspects in nec essary details.
3. The present appeal is directed against the order dated
19.07.2022, as passed by the High Court of Judicatu re at Allahabad 2
in a petition under Article 227 of the Constitution of India bearing
1 Hereinafter also referred to as ‘CrPC’ or ‘the Code ’.
2 Hereinafter also referred to as ‘the High Court’.
859
No. 4882 of 2021. The appellant had preferred the said petition against
the order dated 08.09.2021, as passed by the Additi onal Sessions
Judge, Court No. 1, Muzaffarnagar 3 in Criminal Revision No. 145 of
2021, whereby the Revisional Court had declined to interfere with
the order dated 23.07.2021, as passed by the Sub-Di visional
Magistrate, Budhana 4 in Case No. 2836 of 2021 in exercise of powers
under Section 122 CrPC, forfeiting the bond in the sum of Rs. 5,00,000/
- that had been furnished by the appellant in terms of Section 107
CrPC for keeping the peace.
4. The background aspects relevant for the question at hands
could be noticed in brief as follows: -
4.1.In the wake of 3-tier Panchayat Elections, the Sub-
Inspector, Police Station Bhaura Kalan, Muzaffarnagar m ade a report
on 11.01.2021 to the said Sub-Divisional Magistrate, Budhana, District
Muzaffarnagar that 26 named persons, including the appellant, were
likely to commit crime and there was a strong possib ility of them
affecting the elections due to which, the peace or order in village
Shikarpur could be disturbed. Hence, it was prayed that the named
persons be required to furnish heavy bonds under Se ction 107/116
CrPC. It appears that during the course of inquiry o n the said report,
the learned Magistrate put the appellant to the condi tion of furnishing
bond and accordingly, in terms of Section 116(3) CrPC , the appellant
furnished a personal bond in the sum of Rs. 5,00,00 0/- (Rupees Five
Lakhs). Thereafter, on 30.03.2021, the appellant was bound down in
terms of Section 117 CrPC.
4.2. On 02.07.2021, a report was made by the Revenu e
Inspector/Lekhpal to Magistrate while allegating tha t the appellant
had undertaken illegal construction on 0.0187 hectar es out of 0.5310
hectares of the land of public pond in khasra No. 1 285/2; and that
the said illegal construction was stopped and the p roceedings in that
regard were pending in the Court of Tehsildar, Budhana. It was further
alleged that in spite of instructions, the appellant instal led linter on
the said illegal construction in the midnight of 01.07. 2021; and that
on 02.07.2021, when the authorities reached the sit e to carry out
inspection and to conduct inquiry, the appellant quar relled with them
using indecent language and created obstruction in the official work.
3 Hereinafter also referred to as ‘the Revisional Cou rt’.
4 Hereinafter also referred to as ‘the Magistrate’.
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]
It was, thus, submitted that the appellant had viol ated the terms of
bond executed by him under Section 107 CrPC.
4.3. On the report so made, a notice under Section 122 CrPC
was issued by the Magistrate to the appellant. On b ehalf of the
appellant, appearance was put before the Magistrate and twice over,
adjournments were sought for filing reply. However, neither any reply/
objection was filed on behalf of the appellant nor anyone appeared
on his behalf on 20.07.2021. Hence, the learned Magistrate proceeded
ex parte against the appellant. Taking note of the background facts
and the report as made against the appellant, the lea rned Magistrate
recorded his satisfaction to forfeit the amount of Rs. 5,00,000/- of
the bond furnished by the appellant and directed as un der: -
“On the basis of the above analysis, it is prima fa cie proved
that the respondent/accused Istakar son of Sarwar, resident of
village Shikarpur, pargana Shikarpur, tehsil Budhana, district
Muzaffarnagar, has violated/disturbed the bond order while
being bound by the bond. Therefore, the amount of Rs. 5,00,000/
-, (in words Rupees Five Lakhs) of the bond, is hereby forfeited
from the accused/respondent Istakar son of Sarwar, resident
of village Shikarpur, pargana Shikarpur, tehsil Budhana, district
Muzaffarnagar, in favour of the state government. An d the
above accused is hereby directed that he should dep osit the
bond amount of Rs. 5,00,000/-, (in words Rupees Fiv e Lakhs)
within a week i.e. up to 30-07-2021. If the above amo unt is not
deposited up to the prescribed date, the recovery c ertificate
will be issued against the above respondents less (sic ) accused
for recovery of the above mentioned amount. The attested copy
of the order should be sent to the inspector in cha rge, SHO,
police station Bhaura Kalan and tehsildar, Budhana, for
necessary action. The case file may be consigned to the record
after taking necessary action in the matter.”
4.4. Aggrieved by the order so passed by the learne d
Magistrate, the appellant preferred the said revisi on petition bearing
No. 145 of 2021 that was considered and dismissed by the Revisional
Court by its order dated 08.09.2021. The Revisional Co urt, of course,
initially took note of the fact that the appellant was ordered to execute
the bond so as to maintain peace during Panchayat E lections 2021
and that the maximum period of one year for the bond as permissible
861
under Section 117 was not as such mentioned in the order. However,
the Revisional Court observed that there was no suc h ground on
behalf of the appellant that the proceedings were un dertaken after
the expiry of the period of bond and then, observed that the appellant
had indeed violated the condition of the bond furnis hed by him for
maintaining peace, particularly when he had created obstruction during
official work which was, apart from other aspects, pun ishable as an
offence under Section 186 of the Indian Penal Code. Hence, the
Revisional Court proceeded to dismiss the revision petition while
observing as under:-
“….It is clear that the order was passed under sect ion - 117 on
30-03-2021 and the proceedings in question were exe cuted on
02-07-2021. In other words, this period comes to ab out 4
months. It is also clear that creating obstruction during the
government and official work by the government/reve nue
employees and using indecent language with them, is a
punishable offence under section - 186 Indian Penal Code. The
provisions of section - 120 of the criminal procedu re code,
indicate the circumstances in which the act done by the bounded
person will be considered as violation of the condi tions of the
bond, in which commission of any offence punishable with
imprisonment or attempt to do the same or to commit abetment
in this regard whether the same has been committed or no t. It
is also clear from the provisions of section - 120 that the
commission of the act/attempt/abetment itself is su fficient.
However, it is not necessary to register the same i n the
prescribed provisions of the criminal scissor code. Although it
has been argued on behalf of the revisionist that the vi olation
shown by the report of the lekhpal is not violation of the
conditions imposed in the restriction. However, the s ubsequent
activities have not been clearly explained, village under the
above-mentioned section - 186. Read with section - 40 Indian
Penal Code, it is an offence punishable with impris onment.
Therefore, the revisionist has committed such a crim inal act of
undertaking illegal construction on the government land and
when the government machinery opposed the same, use of the
indecent language with them and trying to quarrel w ith them
and creating obstruction in the office work, which c onstitutes
a violation of section - 117 under the conditions imposed earlier
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]
within the meaning of section - 120 and the impugne d order
has been passed in accordance with the same. Theref ore, the
impugned order passed by the learned lower court is legally
maintainable. Accordingly, the revision is liable to be dismissed
for being without any force.”
4.5. Aggrieved by the order aforesaid, the appellant pref erred
the writ petition but the High Court refused to exercise its jurisdiction
under Article 227 of the Constitution of India whil e observing that
this jurisdiction was to be exercised sparingly and there was no
illegality or material irregularity in the orders passed in the present
case. The High Court further proceeded to direct the appellant to
comply with the impugned order dated 23.07.2021 wit hin three
months. In the first two paragraphs of impugned sho rt order dated
19.07.2022, the High Court took note of background fa cts relating to
the subject-matter and then, proceeded to state its co nclusion in the
following terms: -
“The jurisdiction vested in High Court under Article 227 of the
Constitution of India should be exercised sparingly and only in
appropriate cases to keep the subordinate courts wit hin the
bounds of their authority. Impugned order has been c onfirmed
by the revisional court. Detail order has been pass ed by the
revisional court and trial court. There appears no illeg ality or
material irregularity in the impugned order.
It is not a fit case in which jurisdiction vested un der Article
227 should be exercised in favour of the petitioner .
Petitioner is directed to comply impugned order dat ed
23.07.2021 within three months.
This petition is hereby disposed of accordingly.”
5. On 26.09.2022, while examining this matter preli minarily,
this Court issued notice, limited only to the quest ion as to why the
amount payable by the petitioner-appellant under the bond in question
be not reduced. Thus, the matters relating to furni shing of bond by
the appellant and its forfeiture are not as such arising for adjudication.
However, the question is as to the reasonable amoun t payable by the
appellant under the bond furnished by him and forfe ited by the
Magistrate.
863
6. For determination of the material points arising in this matter,
a look at the relevant statutory provision shall be apposite. The
proceedings have been adopted against the appellant in terms of the
provisions contained in Chapter VIII of CrPC. This Chapter is
essentially for taking security from a particular pe rson for keeping
peace or for maintaining good behaviour. It could a t once be noticed
that the provisions of this Chapter VIII are prevent ive in their scope;
and their aim and objective is to provide for such m easures which
would prevent disturbance in public tranquillity or breach of peace.
6.1 Chapter VIII of CrPC ranges from Section 106 to Sect ion
124. Section 106 provides for securing society from people who are
a danger to the public by reason of commission of of fence i.e., it
applies to convicted offenders. Further, Section 107 to 110 are for
cases other than those mentioned in Section 106. Of these, Section
107 is for taking security generally for keeping the pea ce; Section
108 is for security for good behaviour from persons disseminating
seditions matters; Section 109 is for security for good behaviour from
suspected persons; and Section 110 is for security fo r good behaviour
from habitual offenders. Sections 111 to 124 lay do wn the procedure
to be followed in these cases. The procedure when a bond is forfeited,
is essentially provided in Section 446 CrPC.
7.For the questions at hand, we may usefully reproduce Sections
107, 111, 116, 117, 120, 122(1)(b) and 446 CrPC as f ollows: -
“107. Security for keeping the peace in other cases. —
(1) When an Executive Magistrate receives informati on that
any person is likely to commit a breach of the peace or disturb
the public tranquillity or to do any wrongful act t hat may
probably occasion a breach of the peace or disturb the public
tranquillity and is of opinion that there is suffic ient ground for
proceeding, he may, in the manner hereinafter provided, require
such person to show cause why he should not be orde red to
execute a bond with or without sureties, for keepin g the peace
for such period, not exceeding one year, as the Magistrate thinks
fit.
(2) Proceedings under this section may be taken
before any Executive Magistrate when either the place wh ere
the breach of the peace or disturbance is apprehended is within
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]
his local jurisdiction or there is within such jurisdiction a person
who is likely to commit a breach of the peace or di sturb the
public tranquillity or to do any wrongful act as aforesaid beyond
such jurisdiction.
**** **** ****
111. Order to be made. — 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 o f the bond
to be executed, the term for which it is to be in force, a nd the
number, character and class of sureties (if any) re quired.
**** **** ****
116. Inquiry as to truth of information. — (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 ap pears
or is brought before a Magistrate in compliance with , or in
execution of, a summons or warrant, issued under se ction 113,
the Magistrate shall proceed to inquire into the tru th 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 preve ntion of
a breach of the peace or disturbance of the public tranq uillity
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 p eace or
maintaining good behaviour until the conclusion of the inquiry,
and may detain him in custody until such bond is ex ecuted or,
in default of execution, until the inquiry is conclude d:
Provided that-
865
(a) no person against whom proceedings are not being ta ken
under section 108, section 109, or section 110 shall be
directed to execute a bond for maintaining good beha viour;
(b) the conditions of such bond, whether as to the amount
thereof or as to the provision of sureties or the n umber
thereof or the pecuniary extent of their liability, shall not be
more onerous than those specified in the order under section
111.
(4) For the purposes of this section the fact that a person is
an habitual offender or is so desperate and dangero us as to
render his being at large without security hazardou s to the
community may be proved by evidence of general reput e or
otherwise.
(5) Where two or more persons have been associated
together in the matter under inquiry, they may be d ealt with in
the same or separate inquiries as the Magistrate sh all think
just.
(6) The inquiry under this section shall be complete d within
a period of six months from the date of its commenc ement,
and if such inquiry is not so completed, the procee dings under
this Chapter shall, on the expiry of the said perio d, stand
terminated unless, for special reasons to be recorde d in writing,
the Magistrate otherwise directs:
Provided that where any person has been kept in deten tion
pending such inquiry, the proceeding against that person, unless
terminated earlier, shall stand terminated on the e xpiry of a
period of six months of such detention.
(7) Where any direction is made under sub-section ( 6)
permitting the continuance of proceedings, the Sessi ons Judge
may, on an application made to him by the aggrieved party,
vacate such direction if he is satisfied that it was not based on
any special reason or was perverse.
117. Order to give security .—If, upon such inquiry, it is
proved that it is necessary for keeping the peace or maintaining
good behaviour, as the case may be, that the person in respect
of whom the inquiry is made should execute a bond, with or
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]
without sureties, the Magistrate shall make an orde r
accordingly:
Provided that—
(a) no person shall be ordered to give security of a nature
different from, or of an amount larger than, or for a period
longer than, that specified in the order made under section 111;
(b) the amount of every bond shall be fixed with du e
regard to the circumstances of the case and shall n ot be
excessive;
(c) when the person in respect of whom the inquiry i s
made is a minor, the bond shall be executed only by his sureties.
**** **** ****
120. Contents of bond .—The bond to be executed by any
such person shall bind him to keep the peace or to be of g ood
behaviour, as the case may be, and in the latter ca se the
commission or attempt to commit, or the abetment of , any
offence punishable with imprisonment, wherever it m ay be
committed, is a breach of the bond.
**** **** ****
122. Imprisonment in default of security. —
(1) **** **** ****
(b) If any person after having executed a bond, with or w ithout
sureties for keeping the peace in pursuance of an o rder of a
Magistrate under section 117, is proved, to the satisf action of
such Magistrate or his successor- in- office, to ha ve committed
breach of the bond, such Magistrate or successor- in— offi ce
may, after recording the grounds of such proof, order th at the
person be arrested and detained in prison until the expiry of
the period of the bond and such order shall be without prejudice
to any other punishment or forfeiture to which the said person
may be liable in accordance with law.
**** **** ****
446. Procedure when bond has been forfeited .—(1) Where
a bond under this Code is for appearance, or for pr oduction of
867
property, before a Court and it is proved to the satis faction of
that Court or of any Court to which the case has sub sequently
been transferred, that the bond has been forfeited,
or where, in respect of any other bond under this C ode, it is
proved to the satisfaction of the Court by which th e bond was
taken, or of any Court to which the case has subseq uently
been transferred, or of the Court of any Magistrate of the first
class, that the bond has been forfeited,
the Court shall record the grounds of such proof, a nd may
call upon any person bound by such bond to pay the penalty
thereof or to show cause why it should not be paid.
Explanation .—A condition in a bond for appearance, or
for production of property, before a Court shall be construed
as including a condition for appearance, or as the case may be,
for production of property, before any Court to whi ch the case
may subsequently be transferred.
(2) If sufficient cause is not shown and the penalt y is not
paid, the Court may proceed to recover the same as if such
penalty were a fine imposed by it under this Code:
Provided that where such penalty is not paid and can not be
recovered in the manner aforesaid, the person so bo und as
surety shall be liable, by order of the Court order ing the
recovery of the penalty, to imprisonment in civil ja il for a term
which may extend to six months.
(3) The Court may, after recording its reasons for d oing so,
remit any portion of the penalty mentioned and enfo rce
payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited,
his estate shall be discharged from all liability in respect of the
bond.
(5) Where any person who has furnished security unde r
section 106 or section 117 or section 360 is convic ted of an
offence the commission of which constitutes a breac h of the
conditions of his bond, or of a bond executed in lieu of his bond
under section 448, a certified copy of the judgment of the Court
by which he was convicted of such offence may be us ed as
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]
evidence in proceedings under this section against h is surety
or sureties, and, if such certified copy is so used , the Court
shall presume that such offence was committed by him unless
the contrary is proved.”
8. In challenge to the orders aforesaid, learned co unsel for the
appellant has submitted that the amount sought to b e recovered from
the appellant, a daily-wage earner is exceptionally high and is wholly
unjustified. The learned counsel has further argued that the bond for
keeping the peace was executed for the upcoming Pan chayat
Elections and after its successful completion, the s ame was rendered
redundant. He has further contended that even if cert ain discretionary
powers are vested with administrative authorities, the same cannot
be exercised arbitrarily like in the present case, where a direction
has been issued to the appellant to deposit a huge sum of Rs. 5,00,000/
- by forfeiting the bond without even appreciating t he facts and
circumstances of the case and simply on the basis o f an ex parte
report submitted by the Revenue Inspector/ Lekhpal.
9. Per contra , learned counsel for the State has submitted
that the impugned orders of the High Court, Revisiona l Court and the
Magistrate are in accordance with law and are not r equired to be
interfered with by this Court. He has further submi tted that the
appellant was duly served with notice under Section 122 CrPC and
was granted sufficient time to file his reply befor e the Magistrate
but, he neither filed any reply nor appeared before the Magistrate on
the date fixed for final disposal even after seeking a djournments on
the previous dates.
10. We have heard the learned counsel for the parti es and
perused the material placed on record.
11. As noticed, the scope and nature of Section 107 CrPC is
preventive and not punitive. It aims at ensuring that there be no breach
of peace and that the public tranquillity be not di sturbed by any
wrongful or illegal act. The action being preventive in nature is not
based on any overt act but is intended to forestall the potential danger
to serve the interests of public at large. In other words, this provision
is in aid of orderly society and seeks to avert any c onduct subversive
of the peace and public tranquillity. The provision authorises the
Magistrate to initiate proceedings against a person if upon information,
869
he is satisfied that such person is either likely t o commit breach of
peace or disturb public tranquillity or is likely to commit any wrongful
act that might probably produce the same result. Sim ply stated, the
provisions of Chapter VIII of the Code are merely preventive in nature
and are not to be used as a vehicle for punishment.
12. Moreover, the object of furnishing security and/or executing
a bond under Chapter VIII of the Code is not to aug ment the state
exchequer but to avoid any possible breach of peace for maintaining
public peace and tranquillity. It is also explicitl y stipulated under
Proviso (b) to Section 117 that the amount of bond shall be fixed with
due regard to the circumstances of the case and shall not be excessive.
The Magistrate while ordering security under Section 1 17 has to take
into consideration the status and position of the p erson to decide the
quantum of security/bond; and cannot alter the purp ose of the
provisions from preventive to punitive by imposing heavy quantum of
security/bond, which a person might be unable to pa y. The demand
of excessive and arbitrary amount of security/bond stult ifies the spirit
of Chapter VIII of the Code, which remains impermissible .
13. Further, Section 446 CrPC lays down the procedu re for
forfeiture of bond for appearance or for production o f property and
also for any other bond under the Code. The provisi on empowers the
Court to call upon such person bound by the bond to pay penalty or to
show cause as to why he should not pay the penalty. Sub-section (3)
of Section 446 CrPC vests discretionary power to th e Court to remit
any portion of the penalty mentioned and enforce pa yment in part
only, after recording its reasons for doing so. This clearly enunciates
that even when a person fails to show sufficient ca use as to forfeiture
of the bond amount, the Court is not bound to direc t payment or
recovery of the entire bond amount. The Court can e xercise its
discretion and remit some portion of the bond owing to the nature of
the offence, status and position of the person, and having regard to
other facts and circumstances of the case or when t he amount of
bond is unduly excessive.
14. Admittedly, on the alleged date of violation of the terms of
bond, the said election process had already been co mpleted. Even if
the generalised terms of bond as furnished are take n into
consideration, the allegations against the appellant had been that he
obstructed the officials while discharging their dut y and quarrelled
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]
with them with indecent language after undertaking illegal construction
with encroachment. For his alleged acts, he could h ave been
proceeded under the applicable law for any encroachm ent or illegal
construction and he could have also been prosecuted, as indicated by
the Revisional Court, under Section 186 IPC but, in all such processes,
the appellant was to be extended reasonable opportunit y of defending
himself. Without adopting regular proceedings with an opportunity of
defence to the appellant, assuming him to be guilty of encroaching
over public property and of having committed the of fence under
Section 186 IPC cannot be countenanced.
15. Even if it be assumed that apart from his allege d actions of
encroachment and obstructing the officials, the actio ns of appellant
indeed led to breach of peace, the question would st ill remain as to
whether he was to be penalised with the entire amou nt reflected in
the bond. It cannot be ignored that the bond executed by the appellant
was to the tune of Rs. 5,00,000/-. The appellant is a daily-wage earner,
relying on day-to-day income for his everyday meals . As to
proportionality of the amount of bond, it could be not iced that even
for the offence under Section 186 IPC, the prescrib ed punishment is
of imprisonment extending to three months or with fin e upto Rs. 500/
- or both. Viewed thus, the amount of Rs. 5,00,000/ - is unduly
exorbitant, as the fine prescribed for the offence under the IPC itself
is an amount of only Rs. 500/-.
16. Therefore, looking to the totality of circumsta nces; the
nature of alleged acts and the amount of the bond; the fact that the
purpose for which bond was executed had already bee n achieved;
that there was no imminent threat to breach of publ ic peace from
appellant; and the fact that the appellant is a daily-wage earner and
would not have proper means to arrange the bond amo unt, we are of
the view that, forfeiture of an amount of Rs. 5,00, 000/-, on ground of
obstructing a public servant while on duty, that too under Section 107
CrPC, is exceptionally high and beyond raison d’être of Section 107
as also Chapter VIII of the Code. We also find that the bond amount
of Rs.5,00,000/- is excessive even within the contou rs of Proviso (b)
to Section 117 CrPC itself, regardless of the facts of the case.
17. In view of the above, to meet the ends of justice and with
the discretion of remitting the penalty vested in C ourt, the present
appeal is allowed to the extent that the amount to be deposited by the
871
appellant is reduced to the nominal amount of Rs. 5 ,000/- (Rupees
Five Thousand) owing to the peculiarity of the fact s and
circumstances of the present case.
18. It is hereby directed that the amount be deposi ted by the
appellant within six weeks from the date of receipt o f a copy of this
judgment.
Divya Pandey Appeal partly allowed.
(Assisted by : Deepak Panwar, LCRA)
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.
[DINESH MAHESHWARI, J.]