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The proceedings under section 107 of Cr.P.C are preventive in nature and intended to maintain peace and tranquillity in the area: High Court of Jammu & Kashmir and Ladakh

If any person who commits an act that results into disturbing the peace and public tranquillity of an area, he can be bound down by directing him to execute bond for keeping the peace in the said area, provided such an act is against the public at large. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Masood Ahmed and another v. Executive Magistrate Ist Class, Doda and others [APPCR No. 40/2015 c/w CRMC No. 396/2015 (O & M)] which was decided upon by a single judge bench comprising Justice Rajnesh Oswal on 12th November 2021.

The facts of the case are as follows. The petitioners have impugned the complaint as well as proceedings initiated under sections 107 and 117 of Cr.P.C before the respondent No. 1 on the following grounds:- (i) That the respondent No. 1 has not conducted any enquiry in terms of section 117 of Cr.P.C which is mandatory as per procedure. (ii) That the Magistrate has not formed any opinion that there are sufficient grounds for proceeding under section 107 of Cr.P.C. (iii) That the only allegation against the petitioners is that the petitioners often threaten the respondent No. 6 and his family members telephonically and the respondent No. 1 has not relied upon any documentary evidence to demonstrate the same. The petitioner No. 1 appeared in person and has vehemently argued that no proper procedure has been followed by the respondent No. 1 for issuing the process against the petitioners. Mr. Suneel Malhotra, GA submitted that there is no illegality in the order impugned and the petitioners have been rightly summoned by the respondent No. 1.

The court perused the facts and arguments presented. It was of the opinion that “A perusal of the order impugned reveals that nothing has been mentioned except the proceedings under section 107/117 of Cr.P.C have been filed against the petitioners. The Magistrate was required to set forth the substance of the information received in the order so as to enable the petitioners to know about the said information but he has not done so. Learned Magistrate has nowhere recorded his opinion that there exists sufficient ground to take action under the provision of 107 of the Code. Otherwise also, there is nothing on record to substantiate the allegations levelled in the complaint as all the witnesses examined by the Police clearly demonstrate that the petitioners have been residing at Jammu and they were threatening the respondent No. 6 on phone. Viewed thus, the present petition is allowed. The order impugned is set aside and the proceedings are also quashed.”

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Judgment reviewed by Aryan Bajaj

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