Chapter VIII CrPC Provisions Not To Be Used As 'Vehicle For Punishment' ; Demand Of Excessive Amount Of Security/Bond Impermissible: Supreme Court

Ashok KM

1 Dec 2022 5:39 AM GMT

  • Chapter VIII CrPC Provisions Not To Be Used As Vehicle For Punishment ; Demand Of Excessive Amount Of Security/Bond Impermissible: Supreme Court

    The Supreme Court observed that the provisions of Chapter VIII of the Code of Criminal Procedure are merely preventive in nature and are not to be used as a 'vehicle for punishment'.The demand of excessive and arbitrary amount of security/bond is impermissible as it stultifies the spirit of Chapter VIII of the Code, the bench of Justices Dinesh Maheshwari and Sudhanshu Dhulia said.Chapter...

    The Supreme Court observed that the provisions of Chapter VIII of the Code of Criminal Procedure are merely preventive in nature and are not to be used as a 'vehicle for punishment'.

    The demand of excessive and arbitrary amount of security/bond is impermissible as it stultifies the spirit of Chapter VIII of the Code, the bench of Justices Dinesh Maheshwari and Sudhanshu Dhulia said.

    Chapter VIII CrPC

    Chapter VIII of CrPC , that ranges from Section 106 to Section 124, empowers Magistrates to take security from a particular person for keeping peace or for maintaining good behaviour. 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. Section 107 to 110 are for cases other than those mentioned in Section 106. Section 107 is for taking security generally for keeping the peace; Section 108 is for security for good behaviour from persons disseminating seditious matters; Section 109 is for 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. 

    Background

    In this case, the Sub-Divisional Magistrate, Budhana, District Muzaffarnagar, invoking his powers under Section 107 CrPC, put Istkar to the condition of furnishing a personal bond in the sum of Rs. 5,00,000/-. Istkar allegedly violated the terms of the bond and ultimately this made the Magistrate record his satisfaction to forfeit the amount of Rs. 5,00,000/- of the bond. The Revisional authority and later the Allahabad High Court upheld this order of the Magistrate.

    In appeal before the Apex Court, Istkar contended that the amount sought to be recovered from him, who is a daily-wage earner is exceptionally high and is wholly unjustified. The State opposed the appeal contending that he was duly served with notice under Section 122 CrPC and was granted sufficient time to file his reply before the Magistrate but, he neither filed any reply nor appeared before the Magistrate on the date fixed for final disposal even after seeking adjournments on the previous dates. 

    Preventive and not punitive

    The bench, referring to various provisions of Chapter VIII noted that the scope and nature of Section 107 CrPC is preventive and not punitive. The court made the following observations:

    1. Section 107 CrPC  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. In other words, 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.
    2. The provisions of Chapter VIII of the Code are merely preventive in nature and are not to be used as a vehicle for punishment. 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.
    3. It is also explicitly 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 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.

     Court is not bound to direct payment or recovery of the entire bond amount

    The court further noted that 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. This clearly enunciates that 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.", it said.

    The court further noted that the allegations against him was 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.", the bench said.

    Taking note of the fact that the appellant is a daily wage worker and that even under Section 186 IPC, the prescribed punishment is of imprisonment extending to three months or with fine upto Rs. 500/- or both. the bench observed:

    "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'ĂȘtre 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 contours of Proviso (b) to Section 117 CrPC itself, regardless of the facts of the case.

    The court, while allowing the appeal, reduced the amount to the nominal amount of Rs. 5,000/-.

    Case details

    Istkar vs State of Uttar Pradesh | 2022 LiveLaw (SC) 1000 | CrA 2034 of 2022 | 11 Nov 2022 | Justices Dinesh Maheshwari and Sudhanshu Dhulia

    For Petitioner(s) Mr. Bhuwan Raj, AOR Mr. Raghunath Pathak, Adv. Mr. Gaurav Bhatt, Adv. Mr. Anubhav Mehrotra, Adv. Ms. Manju Savita, Adv.

    For Respondent(s) Mr. Vishwa Pal Singh, AOR

    Headnotes

    Code of Criminal Procedure, 1973 ; Chapter VIII ; Section 107,117 -  The provisions of Chapter VIII are merely preventive in nature and are not to be used as a vehicle for punishment - The object of furnishing security and/or executing a bond under Chapter VIII is not to augment the state exchequer but to avoid any possible breach of peace for maintaining public peace and tranquillity - 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. (Para 11-12)

    Code of Criminal Procedure, 1973 ; Section 107 - 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 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. (Para 11)

    Code of Criminal Procedure, 1973 ; Section 446 - 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. (Para 13)

    Click here to Read/Download Order 





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