Court No. - 34
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 927 of 2019
Petitioner :- Sudhakar Dubey And 4 Others
Respondent :- Election Commission Of India And 3 Others
Counsel for Petitioner :- Vijay Chandra Srivastava,Sunita Sharma Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh,Paras Nath Rai
Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Vijay Chandra Srivastava, learned counsel for petitioners, Sri Bhupendra Nath Singh, learned counsel for respondent 1, Sri Paras Nath Rai, learned counsel for respondent 4, learned A.G.A. for respondents and 3 and perused the record.
2. This is a writ petition filed as Public Interest Litigation by five petitioners, who are practicing advocates in District Court and also claimed to be social activists and legal reformer.
3. This Public Interest Litigation has been filed seeking following relief :
"(1) Issue writ order or direction of in the nature of Mandamus directing the respondents not to misused the provision of section 107/116 of Cr.P.C. as well as order passed U/s 111 Cr.P.C. in view of the settled principle of law and those proceedings who have been initiated during the Election period without disclosing the "substance of information" which may be pleased to be quashed since the innocent and peaceful citizens are arbitrarily and malafidely are involved by the police authorities which is in violation of Article 14, 19 & 21 of fundamental rights of the constitution of India.
(2) Issue writ order or direction of in the nature of Mandamus directing the respondent no.1 and 2 to produce the guideline for prevention of misuse of the provisions of section 107/116 Cr.P.C. and passing of the order U/s 111 Cr.P.C. and action taken against misusing this section."
4. Apparently, relief is that Magistrate while exercising power under Section 111 Cr.P.C. should be directed to follow law though it is not in dispute that it is judicial power exercised by Magistrate and if there is any order, which is not in accordance with law, statutory remedy of revision is also available. No aggrieved person has come before Court and instead four Advocates have come seeking issue of mandamus that Magistrates be directed to follow law with reference to Section 111 Cr.P.C.
5. It is thoroughly misconceived writ petition.
6. Section 111 Cr.P.C. reads as under ;
“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 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.”
(emphasis added)
7. It is part of Chapter VIII, which has Sections 106 to 124 dealing with subject “Security for keeping the peace and good behaviour”. Sections 111 to 124 provide procedure according to which security can be asked either for keeping peace or for good behaviour i.e. under circumstances detailed in Sections 107 to 110. Section 111 Cr.P.C. is common to Sections 107 to 110. It provides passing of preliminary order. The order must be in writing setting forth substance of information received, amount of bond to be executed, term for which it is to be in force and number, character and class of sureties, if any. Source of information need not be disclosed by Magistrate but provision is mandatory. There is no presumption that Magistrate, while exercising statutory powers would not follow procedure prescribed in law.
8. In the present case, Magistrate has recorded his satisfaction based on Police report, as is evident from some of notices placed on record by petitioners before this Court. In any case, if there is any legal lacuna, statutory remedy to aggrieved person is available and such a matter cannot be subject matter of a 'Public Interest Litigation' and that too at the instance of some of the Advocates.
9. Writ petition is dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only).
Order Date :- 26.4.2019 KA