Istkar vs The State of Uttar Pradesh & Anr.

HELD: 1.1 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 person for keeping peace or for maintaining good behaviour. The provisions of this Chapter VIII are preventive in their scope; and their aim and objective is to provide for such measures which would prevent disturbance in public tranquillity or breach of peace. Chapter VIII of CrPC ranges from Section 106 to Section 124. Section 106 provides for securing society from people who are a danger to the public by reason of commission of offence 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 peace; Section 108 is for security for good behaviour from persons disseminating sedit ions matt ers; Sect ion 109 is f or security for good behaviour from suspected persons; and Section 110 is for security for good behaviour from habitual offenders. Sections

111 to 124 lay down the procedure to be followed in these cases. The procedure when a bond is forfeited, is essentially provided in Section 446 CrPC. [Paras 6, 6.1][863-A-E]

1.2 The scope and nat ure 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 disturbed 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. This provision is in aid of orderly society and seeks to avert any conduct subversive of the peace and public tranquillity. The provision authorises the Magistrate to initiate proceedings against a person if upon information, he is satisfied that such person is either likely to commit breach of peace or disturb public tranquillity or is likely to commit any wrongful act that might probably produce the same result. The provisions of Chapter VIII of the Code are merely preventive in nature and are not to be used as a vehicle for punishment. Moreover, the object of furnishing security and/or executing a bond under Chapter VIII of the Code is not to augment the state exchequer but to avoid any possible breach of peace for maintaining public peace and tranquillity. It is also explicitly stipulated under Proviso (b) to Section 117 that the amount of bond shall be f ixed w ith due regard to the circumstances of the case and shall not be excessive. The Magistrate while ordering security under Section 117 has to take into consideration the status and position of the person to decide the quantum of security/bond; and cannot alter the purpose of the provisions from preventive to punitive by imposing heavy quantum of security/bond, which a person might be unable to pay. The demand of excessive and arbitrary amount of security/bond stultifies the spirit of Chapter VIII of the Code, which remains impermissible. [Paras 11, 12][868G-H; 869-A-D]

1.3 Further, Section 446 CrPC lays down the procedure for forfeiture of bond for appearance or for production of property and also for any other bond under the Code. The provision 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 the Court to remit any portion of the penalty mentioned and enforce payment in part only, after recording its reasons for doing so. Even when a person fails to show sufficient cause as to forfeiture of the bond amount, the Court is not bound to direct payment or recovery of the entire bond amount. The Court can exercise 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 the amount of bond is unduly excessive. Admittedly, on the alleged date of violation of the terms of bond, the said election process had already been completed. Even if the generalised terms of bond as furnished are taken into consideration, the allegations against the appellant had been that he obstructed the officials while discharging their duty and quarrelled with them with indecent language after undertaking illegal construction with encroachment. For his alleged acts, he could have been proceeded under the applicable law for any encroachment 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 opportunity 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 offence under Section

186 IPC cannot be countenanced. Even if it be assumed that apart from his alleged actions of encroachment and obstructing the officials, the actions of appellant indeed led to breach of peace, the question would still remain as to whether he was to be penalised with the entire amount 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 noticed that even for the offence under Section 186 IPC, the prescribed punishment is of imprisonment extending to three months or with fine 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/-. Therefore, looking to the totality of circumstances; the nature of alleged acts and the amount of the bond; the fact that the purpose for which bond was executed had already been achieved; that there was no imminent threat to breach of public peace from appellant; and the fact that the appellant is a dailywage earner and would not have proper means to arrange the bond amount, 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. The bond amount of Rs.5,00,000/- is excessive even within the contours of Proviso (b) t o Section 117 CrPC itself, regardless of the facts of the case. To meet the ends of justice and with the discretion of remitting the penalty vested in Court, the present appeal is allowed to the extent that the amount to be deposited by the appellant is reduced to the nominal amount of Rs. 5,000/- (Rupees Five Thousand) owing to the peculiarity of the facts and circumstances of the present case. The amount be deposited by the appellant within six weeks from the date of receipt of a copy of this judgment. [Paras 13-18][869-E-H; 870-A-H; 871-A-B]