Bond For Keeping Peace/ Good Behaviour: Calcutta High Court Formulates Guidelines For Executive Magistrates Exercising Jurisdiction U/S 111 CrPC

A single judge bench of Justice Tirthankar Ghosh directed:

(a) The production warrant should accompany a copy of the order passed by the Executive Magistrate.

(b) The bond which is expressed in the show cause notice should not be excessive or impossible to be executed and must be in the nature of a bond granted by a Court allowing prayer for bail in cases under Section 302 of the Indian Penal Code by the Sessions Judge of the concerned district.

(c) On the first day of production if the accused or the petitioner is unrepresented, he must be provided with an option of legal representation from the District Legal Aid Services Authority.

(d) If the accused or the petitioner is unable to understand the meaning of the terms "show cause" then the Court would explain the allegations against him and as provided in Section 251 of the Code, read out such allegation and ask him whether he pleads guilty or not (in view of the fact that Section 116(2) of CrPC refers to summons cases).

(e) The Magistrate would within a month of such production make efforts for commencement of recording of evidence of the witnesses intended to be produced by the applicants or the prosecution.

(f) If under Section 116(3) of CrPC the accused or the persons are unable to furnish the bond then in that case they would be deemed to be in custody from the date of their first production before the Executive Magistrate and if their enquiries are not concluded within a period of six months, the Court would close the proceedings and release the accused or the persons against whom proceedings were initiated.

(g) Under no circumstances a detained person would be asked to face an enquiry extending beyond the period of six months by assigning any special reasons.

The development comes in a batch of revision petitions where the petitioners were accused of offences and were in custody when the police authorities prayed before the Executive Magistrate for invoking the provisions of Section 110 CrPC for the purposes of furnishing bond with sureties and the Magistrate accordingly passed the orders.

All the petitioners were history sheeters, who were in custody for more than six months; in some cases, the proceedings continued for more than a year and a half. The Executive Magistrate had directed that bonds be furnished through either Group A gazetted officer sureties or gazetted sureties or government employees, irrespective of whether it was available, or required at all.

Section 110 allows magistrates to require show cause why a "habitual offender" should not be ordered to execute a bond - with sureties - for his good behaviour for such period, not exceeding three years.

Section 111 deals with "order to be made" and provides that 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 116 insists on conducting inquiry; and if such inquiry is not completed within six months, the proceedings stand terminated, unless the Magistrate records special reasons in writing.

The Court noted that in none of the cases before it had an inquiry been instituted. Moreover, in some cases, the terms of the bond were impossible to be executed and could not be furnished by the petitioner, thus, he was sent back to jail and remained in custody. In another case, the Magistrate ignored Section 116 and "erroneously" extended the custody of the petitioner beyond six months.

The Court further stated that in all cases, the show cause orders contained directions for furnishing bonds, which were excessive, and sureties of such character that they would never agree to vouch for the petitioners. The Court found this partially against the spirit of Section 117(b), which states that "the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive."

The Court retained that in all four cases, the provisions of Section 110 were used recklessly and there were no efforts to start the process of inquiry under Section 116. There were no exertions made to ensure that the petitioners had legal representation. No law was adhered to while passing the orders and no uniform procedure was followed for fixing the next dates. The limited period during which the enquiry was supposed to be completed was completely ignored, the Court noted.

Having noted the above, the Court quashed the orders by the Executive Magistrates and formulated the aforementioned guidelines.

Case Title : Rajesh Prasad Tanti -vs.- The State of West Bengal and connected matters

Citation: 2022 LiveLaw (Cal) 284 

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