ISTKAR versus THE STATE OF UTTAR PRADESH & ANR. on 11 November 2022

854

[2022] 8 S.C.R. 854

SUPREME COURT REPORTS

[2022] 8 S.C.R.

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ISTKAR

v.

THE STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No.2034 of 2022)

BNOVEMBER 11, 2022

[DINESH MAHESHWARI ANDSUDHANSHU DHULIA, JJ.]

Code of Criminal Procedure, 1973 – Chapter VIII – s.107,117 – Bond in the sum of Rs.5,00,000/- was furnished by theCappellant in terms of s.107 for keeping the peace in the wake ofupcoming panchayat elections – Forfeited – Revision petitionfiled by the appellant was dismissed – Writ petition filed byappellant, High Court held that there was no illegality in theorders passed – On appeal, held: The scope and nature of s.107Dis preventive and not punitive as it aims at ensuring that there beno breach of peace and that the public tranquillity be notdisturbed by any wrongful or illegal act – Purpose of provisionsof Chapter VIII cannot be altered from preventive to punitive byimposing heavy quantum of security/bond, which a person mightbe unable to pay – In the present case, admittedly, on the allegedEdate of violation of the terms of bond, the election process hadalready been completed – Assuming that apart from his allegedactions of encroaching public property and obstructing theofficials (u/s.186, IPC), the actions of appellant indeed led tobreach of peace, the question is as to whether he was to beFpenalised with the entire amount reflected in the bond –Magistrate while ordering security u/s.117 has to take intoconsideration the status and position of the person to decide thequantum of security/bond – Appellant is a daily-wage earner –Even for the offence u/s.186 IPC, the prescribed punishment isof imprisonment extending to three months or with fine upto Rs.G500/- or both – Forfeiture of Rs.5,00,000/- on ground ofobstructing a public servant while on duty, that too u/s.107 , isexceptionally high and beyond raison d’être of s.107 as alsoChapter VIII – Bond amount of Rs.5,00,000/- is excessive evenwithin the contours of proviso (b) to s.117 itself, regardless of H

the facts of the case – On facts, amount to be deposited by theappellant reduced to Rs. 5,000/- – Penal Code, 1860 – s.186.

Code of Criminal Procedure, 1973 – Chapter VIII – ss.106-124 – Held: Provisions of Chapter VIII of the Code are merelypreventive in nature and are not to be used as a vehicle forpunishment.

Code of Criminal Procedure, 1973 – Chapter VIII –Furnishing of security and/or executing a bond under – Objectof – Discussed.

Code of Criminal Procedure, 1973 – s.466 – Power ofCourt under – Discussed.

Partly allowing the appeal, the Court

HELD: 1.1 The proceedings have been adopted againstthe appellant in terms of the provisions contained in ChapterVIII of CrPC. This Chapter is essentially for taking securityfrom a particular person for keeping peace or for maintaininggood behaviour. The provisions of this Chapter VIII arepreventive in their scope; and their aim and objective is toprovide for such measures which would prevent disturbancein public tranquillity or breach of peace. Chapter VIII of CrPCranges from Section 106 to Section 124. Section 106 providesfor securing society from people who are a danger to the publicby reason of commission of offence i.e., it applies to convictedoffenders. Further, Section 107 to 110 are for cases other thanthose mentioned in Section 106. Of these, Section 107 is fortaking security generally for keeping the peace; Section 108is for security for good behaviour from persons disseminatingseditions matters; Section 109 is for security for goodbehaviour from suspected persons; and Section 110 is forsecurity for good behaviour from habitual offenders. Sections111 to 124 lay down the procedure to be followed in these cases.The procedure when a bond is forfeited, is essentially providedin Section 446 CrPC. [Paras 6, 6.1][863-A-E]

1.2 The scope and nature of Section 107 CrPC ispreventive and not punitive. It aims at ensuring that there beno breach of peace and that the public tranquillity be not A

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Adisturbed by any wrongful or illegal act. The action beingpreventive in nature is not based on any overt act but isintended to forestall the potential danger to serve the interestsof public at large. This provision is in aid of orderly societyand seeks to avert any conduct subversive of the peace andpublic tranquillity. The provision authorises the Magistrate toBinitiate proceedings against a person if upon information, heis satisfied that such person is either likely to commit breachof peace or disturb public tranquillity or is likely to commitany wrongful act that might probably produce the same result.The provisions of Chapter VIII of the Code are merelyCpreventive in nature and are not to be used as a vehicle forpunishment. Moreover, the object of furnishing security and/or executing a bond under Chapter VIII of the Code is not toaugment the state exchequer but to avoid any possible breachof peace for maintaining public peace and tranquillity. It is alsoexplicitly stipulated under Proviso (b) to Section 117 that theDamount of bond shall be fixed with due regard to thecircumstances of the case and shall not be excessive. TheMagistrate while ordering security under Section 117 has totake into consideration the status and position of the personto decide the quantum of security/bond; and cannot alter theEpurpose of the provisions from preventive to punitive byimposing heavy quantum of security/bond, which a person mightbe unable to pay. The demand of excessive and arbitraryamount of security/bond stultifies the spirit of Chapter VIII ofthe Code, which remains impermissible. [Paras 11, 12][868-G-H; 869-A-D]F

1.3 Further, Section 446 CrPC lays down the procedurefor forfeiture of bond for appearance or for production ofproperty and also for any other bond under the Code. Theprovision empowers the Court to call upon such person boundby the bond to pay penalty or to show cause as to why he shouldGnot pay the penalty. Sub-section (3) of Section 446 CrPC vestsdiscretionary power to the Court to remit any portion of thepenalty mentioned and enforce payment in part only, afterrecording its reasons for doing so. Even when a person failsto show sufficient cause as to forfeiture of the bond amount, H

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the Court is not bound to direct payment or recovery of theentire bond amount. The Court can exercise its discretion andremit some portion of the bond owing to the nature of theoffence, status and position of the person, and having regardto other facts and circumstances of the case or when theamount of bond is unduly excessive. Admittedly, on the allegeddate of violation of the terms of bond, the said election processhad already been completed. Even if the generalised terms ofbond as furnished are taken into consideration, the allegationsagainst the appellant had been that he obstructed the officialswhile discharging their duty and quarrelled with them withindecent language after undertaking illegal construction withencroachment. For his alleged acts, he could have beenproceeded under the applicable law for any encroachment orillegal construction and he could have also been prosecuted,as indicated by the Revisional Court, under Section 186 IPCbut, in all such processes, the appellant was to be extendedreasonable opportunity of defending himself. Without adoptingregular proceedings with an opportunity of defence to theappellant, assuming him to be guilty of encroaching over publicproperty and of having committed the offence under Section186 IPC cannot be countenanced. Even if it be assumed thatapart from his alleged actions of encroachment and obstructingthe officials, the actions of appellant indeed led to breach ofpeace, the question would still remain as to whether he was tobe penalised with the entire amount reflected in the bond. Itcannot be ignored that the bond executed by the appellant wasto the tune of Rs. 5,00,000/-. The appellant is a daily-wageearner, relying on day-to-day income for his everyday meals.As to proportionality of the amount of bond, it could be noticedthat even for the offence under Section 186 IPC, the prescribedpunishment is of imprisonment extending to three months orwith fine upto Rs. 500/- or both. Viewed thus, the amount ofRs. 5,00,000/- is unduly exorbitant, as the fine prescribed forthe offence under the IPC itself is an amount of only Rs. 500/-. Therefore, looking to the totality of circumstances; thenature of alleged acts and the amount of the bond; the factthat the purpose for which bond was executed had already beenachieved; that there was no imminent threat to breach of public AB

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Apeace from appellant; and the fact that the appellant is a daily-wage earner and would not have proper means to arrange thebond amount, forfeiture of an amount of Rs. 5,00,000/-, onground of obstructing a public servant while on duty, that toounder Section 107 CrPC, is exceptionally high and beyondraison d’être of Section 107 as also Chapter VIII of the Code.BThe bond amount of Rs.5,00,000/- is excessive even withinthe contours of Proviso (b) to Section 117 CrPC itself,regardless of the facts of the case. To meet the ends of justiceand with the discretion of remitting the penalty vested in Court,the present appeal is allowed to the extent that the amount toCbe deposited by the appellant is reduced to the nominal amountof Rs. 5,000/- (Rupees Five Thousand) owing to the peculiarityof the facts and circumstances of the present case. The amountbe deposited by the appellant within six weeks from the dateof receipt of a copy of this judgment. [Paras 13-18][869-E-H;870-A-H; 871-A-B]DCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.2034 of 2022.

From the Judgment and Order dated 19.07.2022 of the HighCourt of Judicature at Allahabad in Matters Under Article 227No.4882 of 2021.EBhuwan Raj, Raghunath Pathak, Gaurav Bhatt, AnubhavMehrotra, Ms. Manju Savita, Advs. for the Appellant.

Vishwa Pal Singh, Adv. for the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.F

Leave Granted.

2. Though a short question as regards forfeiture of the bondfurnished by the appellant in terms of Section 107 of the Code ofCriminal Procedure, 1973[1] and the amount payable thereunder isinvolved in this matter but, having regard to its implications, we deemGit appropriate to dilate on the relevant aspects in necessary details.

3. The present appeal is directed against the order dated19.07.2022, as passed by the High Court of Judicature 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’.

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No. 4882 of 2021. The appellant had preferred the said petition againstthe order dated 08.09.2021, as passed by the Additional SessionsJudge, Court No. 1, Muzaffarnagar[3] in Criminal Revision No. 145 of2021, whereby the Revisional Court had declined to interfere withthe order dated 23.07.2021, as passed by the Sub-DivisionalMagistrate, Budhana[4] in Case No. 2836 of 2021 in exercise of powersunder 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 107CrPC for keeping the peace.

4. The background aspects relevant for the question at handscould be noticed in brief as follows: - 4.1.In the wake of 3-tier Panchayat Elections, the Sub-Inspector, Police Station Bhaura Kalan, Muzaffarnagar made a reporton 11.01.2021 to the said Sub-Divisional Magistrate, Budhana, DistrictMuzaffarnagar that 26 named persons, including the appellant, werelikely to commit crime and there was a strong possibility of themaffecting the elections due to which, the peace or order in villageShikarpur could be disturbed. Hence, it was prayed that the namedpersons be required to furnish heavy bonds under Section 107/116CrPC. It appears that during the course of inquiry on the said report,the learned Magistrate put the appellant to the condition of furnishingbond and accordingly, in terms of Section 116(3) CrPC, the appellantfurnished a personal bond in the sum of Rs. 5,00,000/- (Rupees FiveLakhs). Thereafter, on 30.03.2021, the appellant was bound down interms of Section 117 CrPC.

4.2. On 02.07.2021, a report was made by the RevenueInspector/Lekhpal to Magistrate while allegating that the appellanthad undertaken illegal construction on 0.0187 hectares out of 0.5310hectares of the land of public pond in khasra No. 1285/2; and thatthe said illegal construction was stopped and the proceedings in thatregard were pending in the Court of Tehsildar, Budhana. It was furtheralleged that in spite of instructions, the appellant installed linter onthe said illegal construction in the midnight of 01.07.2021; and thaton 02.07.2021, when the authorities reached the site to carry outinspection and to conduct inquiry, the appellant quarrelled with themusing indecent language and created obstruction in the official work.

3 Hereinafter also referred to as ‘the Revisional Court’.

4 Hereinafter also referred to as ‘the Magistrate’.

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AIt was, thus, submitted that the appellant had violated the terms ofbond executed by him under Section 107 CrPC.

4.3. On the report so made, a notice under Section 122 CrPCwas issued by the Magistrate to the appellant. On behalf of theappellant, appearance was put before the Magistrate and twice over,Badjournments were sought for filing reply. However, neither any reply/objection was filed on behalf of the appellant nor anyone appearedon his behalf on 20.07.2021. Hence, the learned Magistrate proceededex parte against the appellant. Taking note of the background factsand the report as made against the appellant, the learned Magistraterecorded his satisfaction to forfeit the amount of Rs. 5,00,000/- ofCthe bond furnished by the appellant and directed as under: - “On the basis of the above analysis, it is prima facie provedthat the respondent/accused Istakar son of Sarwar, resident ofvillage Shikarpur, pargana Shikarpur, tehsil Budhana, districtMuzaffarnagar, has violated/disturbed the bond order whileDbeing bound by the bond. Therefore, the amount of Rs. 5,00,000/-, (in words Rupees Five Lakhs) of the bond, is hereby forfeitedfrom the accused/respondent Istakar son of Sarwar, residentof village Shikarpur, pargana Shikarpur, tehsil Budhana, districtMuzaffarnagar, in favour of the state government. And theEabove accused is hereby directed that he should deposit thebond amount of Rs. 5,00,000/-, (in words Rupees Five Lakhs)within a week i.e. up to 30-07-2021. If the above amount is notdeposited up to the prescribed date, the recovery certificatewill be issued against the above respondents less (sic) accusedfor recovery of the above mentioned amount. The attested copyFof the order should be sent to the inspector in charge, SHO,police station Bhaura Kalan and tehsildar, Budhana, fornecessary action. The case file may be consigned to the recordafter taking necessary action in the matter.”

4.4. Aggrieved by the order so passed by the learnedGMagistrate, the appellant preferred the said revision petition bearingNo. 145 of 2021 that was considered and dismissed by the RevisionalCourt by its order dated 08.09.2021. The Revisional Court, of course,initially took note of the fact that the appellant was ordered to executethe bond so as to maintain peace during Panchayat Elections 2021Hand that the maximum period of one year for the bond as permissible under Section 117 was not as such mentioned in the order. However,the Revisional Court observed that there was no such ground onbehalf of the appellant that the proceedings were undertaken afterthe expiry of the period of bond and then, observed that the appellanthad indeed violated the condition of the bond furnished by him formaintaining peace, particularly when he had created obstruction duringofficial work which was, apart from other aspects, punishable as anoffence under Section 186 of the Indian Penal Code. Hence, theRevisional Court proceeded to dismiss the revision petition whileobserving as under:-

“….It is clear that the order was passed under section - 117 on30-03-2021 and the proceedings in question were executed on02-07-2021. In other words, this period comes to about 4months. It is also clear that creating obstruction during thegovernment and official work by the government/revenueemployees and using indecent language with them, is apunishable offence under section - 186 Indian Penal Code. Theprovisions of section - 120 of the criminal procedure code,indicate the circumstances in which the act done by the boundedperson will be considered as violation of the conditions of thebond, in which commission of any offence punishable withimprisonment or attempt to do the same or to commit abetmentin this regard whether the same has been committed or not. Itis also clear from the provisions of section - 120 that thecommission of the act/attempt/abetment itself is sufficient.However, it is not necessary to register the same in theprescribed provisions of the criminal scissor code. Although ithas been argued on behalf of the revisionist that the violationshown by the report of the lekhpal is not violation of theconditions imposed in the restriction. However, the subsequentactivities have not been clearly explained, village under theabove-mentioned section - 186. Read with section - 40 IndianPenal Code, it is an offence punishable with imprisonment.Therefore, the revisionist has committed such a criminal act ofundertaking illegal construction on the government land andwhen the government machinery opposed the same, use of theindecent language with them and trying to quarrel with themand creating obstruction in the office work, which constitutesa violation of section - 117 under the conditions imposed earlier AB

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Awithin the meaning of section - 120 and the impugned orderhas been passed in accordance with the same. Therefore, theimpugned order passed by the learned lower court is legallymaintainable. Accordingly, the revision is liable to be dismissedfor being without any force.”

B4.5. Aggrieved by the order aforesaid, the appellant preferredthe writ petition but the High Court refused to exercise its jurisdictionunder Article 227 of the Constitution of India while observing thatthis jurisdiction was to be exercised sparingly and there was noillegality or material irregularity in the orders passed in the presentcase. The High Court further proceeded to direct the appellant toCcomply with the impugned order dated 23.07.2021 within threemonths. In the first two paragraphs of impugned short order dated19.07.2022, the High Court took note of background facts relating tothe subject-matter and then, proceeded to state its conclusion in thefollowing terms: - D“The jurisdiction vested in High Court under Article 227 of theConstitution of India should be exercised sparingly and only inappropriate cases to keep the subordinate courts within thebounds of their authority. Impugned order has been confirmedby the revisional court. Detail order has been passed by theErevisional court and trial court. There appears no illegality ormaterial irregularity in the impugned order.

It is not a fit case in which jurisdiction vested under Article227 should be exercised in favour of the petitioner.

Petitioner is directed to comply impugned order datedF23.07.2021 within three months.

This petition is hereby disposed of accordingly.”

5. On 26.09.2022, while examining this matter preliminarily,this Court issued notice, limited only to the question as to why theamount payable by the petitioner-appellant under the bond in questionGbe not reduced. Thus, the matters relating to furnishing of bond bythe appellant and its forfeiture are not as such arising for adjudication.However, the question is as to the reasonable amount payable by theappellant under the bond furnished by him and forfeited by theMagistrate.H

6. For determination of the material points arising in this matter,a look at the relevant statutory provision shall be apposite. Theproceedings have been adopted against the appellant in terms of theprovisions contained in Chapter VIII of CrPC. This Chapter isessentially for taking security from a particular person for keepingpeace or for maintaining good behaviour. It could at once be noticedthat the provisions of this Chapter VIII are preventive in their scope;and their aim and objective is to provide for such measures whichwould prevent disturbance in public tranquillity or breach of peace.

6.1 Chapter VIII of CrPC ranges from Section 106 to Section124. Section 106 provides for securing society from people who area danger to the public by reason of commission of offence i.e., itapplies to convicted offenders. Further, Section 107 to 110 are forcases other than those mentioned in Section 106. Of these, Section107 is for taking security generally for keeping the peace; Section108 is for security for good behaviour from persons disseminatingseditions matters; Section 109 is for security for good behaviour fromsuspected persons; and Section 110 is for security for good behaviourfrom habitual offenders. Sections 111 to 124 lay down the procedureto 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 Sections107, 111, 116, 117, 120, 122(1)(b) and 446 CrPC as follows: - “—107. Security for keeping the peace in other cases.(1) When an Executive Magistrate receives information thatany person is likely to commit a breach of the peace or disturbthe public tranquillity or to do any wrongful act that mayprobably occasion a breach of the peace or disturb the publictranquillity and is of opinion that there is sufficient ground forproceeding, he may, in the manner hereinafter provided, requiresuch person to show cause why he should not be ordered toexecute a bond with or without sureties, for keeping the peacefor such period, not exceeding one year, as the Magistrate thinksfit.

(2) Proceedings under this section may be takenbefore any Executive Magistrate when either the place wherethe breach of the peace or disturbance is apprehended is within AB

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his local jurisdiction or there is within such jurisdiction a personwho is likely to commit a breach of the peace or disturb thepublic tranquillity or to do any wrongful act as aforesaid beyondsuch jurisdiction.

111. Order to be made.— When a Magistrate acting undersection 107, section 108, section 109 or section 110, deems itnecessary to require any person to show cause under suchsection, he shall make an order in writing, setting forth thesubstance of the information received, the amount of the bondto be executed, the term for which it is to be in force, and thenumber, character and class of sureties (if any) required.

116. Inquiry as to truth of information.— (1) When an orderunder section 111 has been read or explained under section112 to a person present in Court, or when any person appearsor is brought before a Magistrate in compliance with, or inexecution of, a summons or warrant, issued under section 113,the Magistrate shall proceed to inquire into the truth of theinformation upon which action has been taken, and to take suchfurther evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may bepracticable, in the manner hereinafter prescribed for conductingtrial and recording evidence in summons- cases.

(3) After the commencement, and before the completion, ofthe inquiry under sub-section (1), the Magistrate, if he considersthat immediate measures are necessary for the prevention ofa breach of the peace or disturbance of the public tranquillityor the commission of any offence or for the public safety, may,for reasons to be recorded in writing, direct the person in respectof whom the order under section 111 has been made to executea bond, with or without sureties, for keeping the peace ormaintaining good behaviour until the conclusion of the inquiry,and may detain him in custody until such bond is executed or,in default of execution, until the inquiry is concluded:

Provided that-

(a) no person against whom proceedings are not being takenunder section 108, section 109, or section 110 shall bedirected to execute a bond for maintaining good behaviour; (b) the conditions of such bond, whether as to the amountthereof or as to the provision of sureties or the numberthereof or the pecuniary extent of their liability, shall not bemore onerous than those specified in the order under section111.

(4) For the purposes of this section the fact that a person isan habitual offender or is so desperate and dangerous as torender his being at large without security hazardous to thecommunity may be proved by evidence of general repute orotherwise.

(5) Where two or more persons have been associatedtogether in the matter under inquiry, they may be dealt with inthe same or separate inquiries as the Magistrate shall thinkjust.

(6) The inquiry under this section shall be completed withina period of six months from the date of its commencement,and if such inquiry is not so completed, the proceedings underthis Chapter shall, on the expiry of the said period, standterminated unless, for special reasons to be recorded in writing,the Magistrate otherwise directs:

Provided that where any person has been kept in detentionpending such inquiry, the proceeding against that person, unlessterminated earlier, shall stand terminated on the expiry of aperiod of six months of such detention.

(7) Where any direction is made under sub-section (6)permitting the continuance of proceedings, the Sessions Judgemay, on an application made to him by the aggrieved party,vacate such direction if he is satisfied that it was not based onany special reason or was perverse.

117. Order to give security.—If, upon such inquiry, it isproved that it is necessary for keeping the peace or maintaininggood behaviour, as the case may be, that the person in respectof whom the inquiry is made should execute a bond, with or AB

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without sureties, the Magistrate shall make an orderaccordingly:

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Provided that—

(a) no person shall be ordered to give security of a naturedifferent from, or of an amount larger than, or for a periodBlonger than, that specified in the order made under section 111; (b) the amount of every bond shall be fixed with dueregard to the circumstances of the case and shall not beexcessive;

(c) when the person in respect of whom the inquiry ismade is a minor, the bond shall be executed only by his sureties.************

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120. Contents of bond.—The bond to be executed by anysuch person shall bind him to keep the peace or to be of goodbehaviour, as the case may be, and in the latter case thecommission or attempt to commit, or the abetment of, anyoffence punishable with imprisonment, wherever it may becommitted, is a breach of the bond.

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—122. Imprisonment in default of security.

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(b) If any person after having executed a bond, with or withoutsureties for keeping the peace in pursuance of an order of aFMagistrate under section 117, is proved, to the satisfaction ofsuch Magistrate or his successor- in- office, to have committedbreach of the bond, such Magistrate or successor- in— officemay, after recording the grounds of such proof, order that theperson be arrested and detained in prison until the expiry ofthe period of the bond and such order shall be without prejudiceGto any other punishment or forfeiture to which the said personmay be liable in accordance with law.

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446. Procedure when bond has been forfeited.—(1) Wherea bond under this Code is for appearance, or for production of H

property, before a Court and it is proved to the satisfaction ofthat Court or of any Court to which the case has subsequentlybeen transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it isproved to the satisfaction of the Court by which the bond wastaken, or of any Court to which the case has subsequentlybeen transferred, or of the Court of any Magistrate of the firstclass, that the bond has been forfeited, the Court shall record the grounds of such proof, and maycall upon any person bound by such bond to pay the penaltythereof or to show cause why it should not be paid.

Explanation.—A condition in a bond for appearance, orfor production of property, before a Court shall be construedas including a condition for appearance, or as the case may be,for production of property, before any Court to which the casemay subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is notpaid, the Court may proceed to recover the same as if suchpenalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot berecovered in the manner aforesaid, the person so bound assurety shall be liable, by order of the Court ordering therecovery of the penalty, to imprisonment in civil jail for a termwhich may extend to six months.

(3) The Court may, after recording its reasons for doing so,remit any portion of the penalty mentioned and enforcepayment 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 thebond.

(5) Where any person who has furnished security undersection 106 or section 117 or section 360 is convicted of anoffence the commission of which constitutes a breach of theconditions of his bond, or of a bond executed in lieu of his bondunder section 448, a certified copy of the judgment of the Courtby which he was convicted of such offence may be used as A

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868SUPREME COURT REPORTS

Aevidence in proceedings under this section against his suretyor sureties, and, if such certified copy is so used, the Courtshall presume that such offence was committed by him unlessthe contrary is proved.”

8. In challenge to the orders aforesaid, learned counsel for theBappellant has submitted that the amount sought to be recovered fromthe appellant, a daily-wage earner is exceptionally high and is whollyunjustified. The learned counsel has further argued that the bond forkeeping the peace was executed for the upcoming PanchayatElections and after its successful completion, the same was renderedredundant. He has further contended that even if certain discretionaryCpowers are vested with administrative authorities, the same cannotbe exercised arbitrarily like in the present case, where a directionhas been issued to the appellant to deposit a huge sum of Rs. 5,00,000/- by forfeiting the bond without even appreciating the facts andcircumstances of the case and simply on the basis of an ex parteDreport submitted by the Revenue Inspector/ Lekhpal.

9. Per contra, learned counsel for the State has submittedthat the impugned orders of the High Court, Revisional Court and theMagistrate are in accordance with law and are not required to beinterfered with by this Court. He has further submitted that theEappellant was duly served with notice under Section 122 CrPC andwas granted sufficient time to file his reply before the Magistratebut, he neither filed any reply nor appeared before the Magistrate onthe date fixed for final disposal even after seeking adjournments onthe previous dates.

F10. We have heard the learned counsel for the parties andperused the material placed on record.

11. As noticed, the scope and nature of Section 107 CrPC ispreventive and not punitive. It aims at ensuring that there be no breachof peace and that the public tranquillity be not disturbed by anyGwrongful or illegal act. The action being preventive in nature is notbased on any overt act but is intended to forestall the potential dangerto serve the interests of public at large. In other words, this provisionis in aid of orderly society and seeks to avert any conduct subversiveof the peace and public tranquillity. The provision authorises theMagistrate to initiate proceedings against a person if upon information,H

he is satisfied that such person is either likely to commit breach ofpeace or disturb public tranquillity or is likely to commit any wrongfulact that might probably produce the same result. Simply stated, theprovisions of Chapter VIII of the Code are merely preventive in natureand are not to be used as a vehicle for punishment.

12. Moreover, the object of furnishing security and/or executinga bond under Chapter VIII of the Code is not to augment the stateexchequer but to avoid any possible breach of peace for maintainingpublic peace and tranquillity. It is also explicitly stipulated underProviso (b) to Section 117 that the amount of bond shall be fixed withdue regard to the circumstances of the case and shall not be excessive.The Magistrate while ordering security under Section 117 has to takeinto consideration the status and position of the person to decide thequantum of security/bond; and cannot alter the purpose of theprovisions from preventive to punitive by imposing heavy quantum ofsecurity/bond, which a person might be unable to pay. The demandof excessive and arbitrary amount of security/bond stultifies the spiritof Chapter VIII of the Code, which remains impermissible.

13. Further, Section 446 CrPC lays down the procedure forforfeiture of bond for appearance or for production of property andalso for any other bond under the Code. The provision empowers theCourt to call upon such person bound by the bond to pay penalty or toshow cause as to why he should not pay the penalty. Sub-section (3)of Section 446 CrPC vests discretionary power to the Court to remitany portion of the penalty mentioned and enforce payment in partonly, after recording its reasons for doing so. This clearly enunciatesthat even when a person fails to show sufficient cause as to forfeitureof the bond amount, the Court is not bound to direct payment orrecovery of the entire bond amount. The Court can exercise itsdiscretion and remit some portion of the bond owing to the nature ofthe offence, status and position of the person, and having regard toother facts and circumstances of the case or when the amount ofbond is unduly excessive.

14. Admittedly, on the alleged date of violation of the terms ofbond, the said election process had already been completed. Even ifthe generalised terms of bond as furnished are taken intoconsideration, the allegations against the appellant had been that heobstructed the officials while discharging their duty and quarrelled A

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Awith them with indecent language after undertaking illegal constructionwith encroachment. For his alleged acts, he could have beenproceeded under the applicable law for any encroachment or illegalconstruction and he could have also been prosecuted, as indicated bythe Revisional Court, under Section 186 IPC but, in all such processes,the appellant was to be extended reasonable opportunity of defendingBhimself. Without adopting regular proceedings with an opportunity ofdefence to the appellant, assuming him to be guilty of encroachingover public property and of having committed the offence underSection 186 IPC cannot be countenanced.

15. Even if it be assumed that apart from his alleged actions ofCencroachment and obstructing the officials, the actions of appellantindeed led to breach of peace, the question would still remain as towhether he was to be penalised with the entire amount reflected inthe bond. It cannot be ignored that the bond executed by the appellantwas to the tune of Rs. 5,00,000/-. The appellant is a daily-wage earner,Drelying on day-to-day income for his everyday meals. As toproportionality of the amount of bond, it could be noticed that evenfor the offence under Section 186 IPC, the prescribed punishment isof imprisonment extending to three months or with fine upto Rs. 500/- or both. Viewed thus, the amount of Rs. 5,00,000/- is undulyexorbitant, as the fine prescribed for the offence under the IPC itselfEis an amount of only Rs. 500/-.

16. Therefore, looking to the totality of circumstances; thenature of alleged acts and the amount of the bond; the fact that thepurpose for which bond was executed had already been achieved;that there was no imminent threat to breach of public peace fromFappellant; and the fact that the appellant is a daily-wage earner andwould not have proper means to arrange the bond amount, we are ofthe view that, forfeiture of an amount of Rs. 5,00,000/-, on ground ofobstructing a public servant while on duty, that too under Section 107CrPC, is exceptionally high and beyond raison d’être of Section 107Gas also Chapter VIII of the Code. We also find that the bond amountof Rs.5,00,000/- is excessive even within the contours 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 withthe discretion of remitting the penalty vested in Court, the presentHappeal is allowed to the extent that the amount to be deposited by the appellant is reduced to the nominal amount of Rs. 5,000/- (RupeesFive Thousand) owing to the peculiarity of the facts andcircumstances of the present case.

18. It is hereby directed that the amount be deposited by theappellant within six weeks from the date of receipt of a copy of thisjudgment.

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeal partly allowed.

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