ISTKARversusTHE STATE OF UTTAR PRADESH & ANR.

854                      [2022]
              SUPREME COURT     8 S.C.R. 854
                             REPORTS                      [2022] 8 S.C.R.


A                                 ISTKAR
                                      v.
                THE STATE OF UTTAR PRADESH & ANR.
                      (Criminal Appeal No.2034 of 2022)
B                           NOVEMBER 11, 2022
                      [DINESH MAHESHWARI AND
                       SUDHANSHU DHULIA, JJ.]
            Code of Criminal Procedure, 1973 – Chapter VIII – s.107,
      117 – Bond in the sum of Rs.5,00,000/- was furnished by the
C     appellant in terms of s.107 for keeping the peace in the wake of
      upcoming panchayat elections – Forfeited – Revision petition
      filed by the appellant was dismissed – Writ petition filed by
      appellant, High Court held that there was no illegality in the
      orders passed – On appeal, held: The scope and nature of s.107
D     is preventive and not punitive as 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 – Purpose of provisions
      of Chapter VIII cannot be altered from preventive to punitive by
      imposing heavy quantum of security/bond, which a person might
      be unable to pay – In the present case, admittedly, on the alleged
E     date of violation of the terms of bond, the election process had
      already been completed – Assuming that apart from his alleged
      actions of encroaching public property and obstructing the
      officials (u/s.186, IPC), the actions of appellant indeed led to
      breach of peace, the question is as to whether he was to be
F     penalised with the entire amount reflected in the bond –
      Magistrate while ordering security u/s.117 has to take into
      consideration the status and position of the person to decide the
      quantum of security/bond – Appellant is a daily-wage earner –
      Even for the offence u/s.186 IPC, the prescribed punishment is
      of imprisonment extending to three months or with fine upto Rs.
G     500/- or both – Forfei ture of Rs.5,00,000/- on ground of
      obstructing a public servant while on duty, that too u/s.107 , is
      exceptionally high and beyond raison d’être of s.107 as also
      Chapter VIII – Bond amount of Rs.5,00,000/- is excessive even
      within the contours of proviso (b) to s.117 itself, regardless of
H
                                     854
   ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                     855


the facts of the case – On facts, amount to be deposited by the    A
appellant 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 merely
preventive in nature and are not to be used as a vehicle for
punishment.                                                        B
     Code of Crimi nal Procedure, 1973 – Chapter VI II –
Furnishing of security and/or executing a bond under – Object
of – Discussed.
     Code of Criminal Procedure, 1973 – s.466 – Power of
Court under – Discussed.                                           C

     Partly allowing the appeal, the Court
      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      D
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       E
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       F
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    G
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
                                                                   H
856           SUPREME COURT REPORTS                     [2022] 8 S.C.R.


A     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
B
      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
C     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
D
      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
E     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][868-
      G-H; 869-A-D]
F
            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
G     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,
H
   ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                      857


the Court is not bound to direct payment or recovery of the         A
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
                                                                    B
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       C
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
                                                                    D
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      E
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
                                                                    F
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     G
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
                                                                    H
858                SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A     peace from appellant; and the fact that the appellant is a daily-
      wage 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.
B
      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
C     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]
D
             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.2034 of 2022.
             From the Judgment and Order dated 19.07.2022 of the High
      Court of Judicature at Allahabad in Matters Under Article 227
      No.4882 of 2021.
E            Bhuwan Raj, Raghunath Pathak, Gaurav Bhatt, Anubhav
      Mehrotra, 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 bond
      furnished by the appellant in terms of Section 107 of the Code of
      Criminal Procedure, 1973 1 and the amount payable thereunder is
      involved in this matter but, having regard to its implications, we deem
G     it appropriate to dilate on the relevant aspects in necessary details.
             3. The present appeal is directed against the order dated
      19.07.2022, as passed by the High Court of Judicature at Allahabad2
      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’.
H
       ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                         859
                  [DINESH MAHESHWARI, J.]

No. 4882 of 2021. The appellant had preferred the said petition against    A
the order dated 08.09.2021, as passed by the Additional Sessions
Judge, Court No. 1, Muzaffarnagar3 in Criminal Revision No. 145 of
2021, whereby the Revisional Court had declined to interfere with
the order dated 23.07.2021, as passed by the Sub-Divisional
Magistrate, Budhana4 in Case No. 2836 of 2021 in exercise of powers
                                                                           B
under 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 107
CrPC for keeping the peace.
      4. The background aspects relevant for the question at hands
could be noticed in brief as follows: -
                                                                           C
       4.1.In the wake of 3-tier Panchayat Elections, the Sub-
Inspector, Police Station Bhaura Kalan, Muzaffarnagar made a report
on 11.01.2021 to the said Sub-Divisional Magistrate, Budhana, District
Muzaffarnagar that 26 named persons, including the appellant, were
likely to commit crime and there was a strong possibility of them
affecting the elections due to which, the peace or order in village        D
Shikarpur could be disturbed. Hence, it was prayed that the named
persons be required to furnish heavy bonds under Section 107/116
CrPC. It appears that during the course of inquiry on the said report,
the learned Magistrate put the appellant to the condition of furnishing
bond and accordingly, in terms of Section 116(3) CrPC, the appellant       E
furnished a personal bond in the sum of Rs. 5,00,000/- (Rupees Five
Lakhs). Thereafter, on 30.03.2021, the appellant was bound down in
terms of Section 117 CrPC.
       4.2. On 02.07.2021, a report was made by the Revenue
Inspector/Lekhpal to Magistrate while allegating that the appellant        F
had undertaken illegal construction on 0.0187 hectares out of 0.5310
hectares of the land of public pond in khasra No. 1285/2; and that
the said illegal construction was stopped and the proceedings in that
regard were pending in the Court of Tehsildar, Budhana. It was further
alleged that in spite of instructions, the appellant installed linter on
the said illegal construction in the midnight of 01.07.2021; and that      G
on 02.07.2021, when the authorities reached the site to carry out
inspection and to conduct inquiry, the appellant quarrelled with them
using 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’.                      H
860            SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A     It was, thus, submitted that the appellant had violated the terms of
      bond executed by him under Section 107 CrPC.
             4.3. On the report so made, a notice under Section 122 CrPC
      was issued by the Magistrate to the appellant. On behalf of the
      appellant, appearance was put before the Magistrate and twice over,
B     adjournments were sought for filing reply. However, neither any reply/
      objection was filed on behalf of the appellant nor anyone appeared
      on his behalf on 20.07.2021. Hence, the learned Magistrate proceeded
      ex parte against the appellant. Taking note of the background facts
      and the report as made against the appellant, the learned Magistrate
      recorded his satisfaction to forfeit the amount of Rs. 5,00,000/- of
C     the bond furnished by the appellant and directed as under: -
            “On the basis of the above analysis, it is prima facie proved
            that the respondent/accused Istakar son of Sarwar, resident of
            village Shikarpur, pargana Shikarpur, tehsil Budhana, district
            Muzaffarnagar, has violated/disturbed the bond order while
D           being bound by the bond. Therefore, the amount of Rs. 5,00,000/
            -, (in words Rupees Five Lakhs) of the bond, is hereby forfeited
            from the accused/respondent Istakar son of Sarwar, resident
            of village Shikarpur, pargana Shikarpur, tehsil Budhana, district
            Muzaffarnagar, in favour of the state government. And the
E           above accused is hereby directed that he should deposit the
            bond 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 not
            deposited up to the prescribed date, the recovery certificate
            will be issued against the above respondents less (sic) accused
            for recovery of the above mentioned amount. The attested copy
F           of the order should be sent to the inspector in charge, SHO,
            police station Bhaura Kalan and tehsildar, Budhana, for
            necessary action. The case file may be consigned to the record
            after taking necessary action in the matter.”
             4.4. Aggrieved by the order so passed by the learned
G     Magistrate, the appellant preferred the said revision petition bearing
      No. 145 of 2021 that was considered and dismissed by the Revisional
      Court by its order dated 08.09.2021. The Revisional Court, of course,
      initially took note of the fact that the appellant was ordered to execute
      the bond so as to maintain peace during Panchayat Elections 2021
H     and that the maximum period of one year for the bond as permissible
    ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                           861
               [DINESH MAHESHWARI, J.]

under Section 117 was not as such mentioned in the order. However,        A
the Revisional Court observed that there was no such ground on
behalf of the appellant that the proceedings were undertaken after
the expiry of the period of bond and then, observed that the appellant
had indeed violated the condition of the bond furnished by him for
maintaining peace, particularly when he had created obstruction during
                                                                          B
official work which was, apart from other aspects, punishable as an
offence under Section 186 of the Indian Penal Code. Hence, the
Revisional Court proceeded to dismiss the revision petition while
observing as under:-
      “….It is clear that the order was passed under section - 117 on
      30-03-2021 and the proceedings in question were executed on         C
      02-07-2021. In other words, this period comes to about 4
      months. It is also clear that creating obstruction during the
      government and official work by the government/revenue
      employees and using indecent language with them, is a
      punishable offence under section - 186 Indian Penal Code. The       D
      provisions of section - 120 of the criminal procedure code,
      indicate the circumstances in which the act done by the bounded
      person will be considered as violation of the conditions of the
      bond, in which commission of any offence punishable with
      imprisonment or attempt to do the same or to commit abetment
      in this regard whether the same has been committed or not. It       E
      is also clear from the provisions of section - 120 that the
      commission of the act/attempt/abetment itself is sufficient.
      However, it is not necessary to register the same in the
      prescribed provisions of the criminal scissor code. Although it
      has been argued on behalf of the revisionist that the violation     F
      shown by the report of the lekhpal is not violation of the
      conditions imposed in the restriction. However, the subsequent
      activities have not been clearly explained, village under the
      above-mentioned section - 186. Read with section - 40 Indian
      Penal Code, it is an offence punishable with imprisonment.
      Therefore, the revisionist has committed such a criminal act of     G
      undertaking illegal construction on the government land and
      when the government machinery opposed the same, use of the
      indecent language with them and trying to quarrel with them
      and creating obstruction in the office work, which constitutes
      a violation of section - 117 under the conditions imposed earlier   H
862            SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A           within the meaning of section - 120 and the impugned order
            has been passed in accordance with the same. Therefore, the
            impugned order passed by the learned lower court is legally
            maintainable. Accordingly, the revision is liable to be dismissed
            for being without any force.”
B            4.5. Aggrieved by the order aforesaid, the appellant preferred
      the writ petition but the High Court refused to exercise its jurisdiction
      under Article 227 of the Constitution of India while observing that
      this jurisdiction was to be exercised sparingly and there was no
      illegality or material irregularity in the orders passed in the present
      case. The High Court further proceeded to direct the appellant to
C     comply with the impugned order dated 23.07.2021 within three
      months. In the first two paragraphs of impugned short order dated
      19.07.2022, the High Court took note of background facts relating to
      the subject-matter and then, proceeded to state its conclusion in the
      following terms: -
D           “The jurisdiction vested in High Court under Article 227 of the
            Constitution of India should be exercised sparingly and only in
            appropriate cases to keep the subordinate courts within the
            bounds of their authority. Impugned order has been confirmed
            by the revisional court. Detail order has been passed by the
E           revisional court and trial court. There appears no illegality or
            material irregularity in the impugned order.
            It is not a fit case in which jurisdiction vested under Article
            227 should be exercised in favour of the petitioner.
            Petitioner is directed to comply impugned order dated
F           23.07.2021 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 the
      amount payable by the petitioner-appellant under the bond in question
G
      be not reduced. Thus, the matters relating to furnishing of bond by
      the appellant and its forfeiture are not as such arising for adjudication.
      However, the question is as to the reasonable amount payable by the
      appellant under the bond furnished by him and forfeited by the
      Magistrate.
H
    ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                              863
               [DINESH MAHESHWARI, J.]

       6. For determination of the material points arising in this matter,   A
a look at the relevant statutory provision shall be apposite. 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. It could at once be noticed
                                                                             B
that 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.
       6.1 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           C
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
seditions matters; Section 109 is for security for good behaviour from       D
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.
      7.For the questions at hand, we may usefully reproduce Sections        E
107, 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 that
      any person is likely to commit a breach of the peace or disturb
      the public tranquillity or to do any wrongful act that may             F
      probably occasion a breach of the peace or disturb the public
      tranquillity and is of opinion that there is sufficient ground for
      proceeding, he may, in the manner hereinafter provided, require
      such person to show cause why he should not be ordered to
      execute a bond with or without sureties, for keeping the peace
      for such period, not exceeding one year, as the Magistrate thinks      G
      fit.
               (2) Proceedings under this section may be taken
      before any Executive Magistrate when either the place where
      the breach of the peace or disturbance is apprehended is within
                                                                             H
864      SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A     his local jurisdiction or there is within such jurisdiction a person
      who is likely to commit a breach of the peace or disturb the
      public tranquillity or to do any wrongful act as aforesaid beyond
      such jurisdiction.
      ****                       ****                               ****
B     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
C     to be executed, the term for which it is to be in force, and the
      number, character and class of sureties (if any) required.
      ****                       ****                               ****
      116. Inquiry as to truth of information.— (1) When an order
      under section 111 has been read or explained under section
D     112 to a person present in Court, or when any person appears
      or is brought before a Magistrate in compliance with, or in
      execution of, a summons or warrant, issued under section 113,
      the Magistrate shall proceed to inquire into the truth of the
      information upon which action has been taken, and to take such
E     further evidence as may appear necessary.
        (2) Such inquiry shall be made, as nearly as may be
      practicable, in the manner hereinafter prescribed for conducting
      trial and recording evidence in summons- cases.
        (3) After the commencement, and before the completion, of
F     the inquiry under sub-section (1), the Magistrate, if he considers
      that immediate measures are necessary for the prevention of
      a breach of the peace or disturbance of the public tranquillity
      or the commission of any offence or for the public safety, may,
      for reasons to be recorded in writing, direct the person in respect
      of whom the order under section 111 has been made to execute
G
      a bond, with or without sureties, for keeping the peace or
      maintaining 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-
H
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                            865
           [DINESH MAHESHWARI, J.]

    (a) no person against whom proceedings are not being taken         A
    under section 108, section 109, or section 110 shall be
    directed to execute a bond for maintaining good behaviour;
    (b) the conditions of such bond, whether as to the amount
    thereof or as to the provision of sureties or the number
    thereof or the pecuniary extent of their liability, shall not be   B
    more onerous than those specified in the order under section
    111.
    (4) For the purposes of this section the fact that a person is
 an habitual offender or is so desperate and dangerous as to
 render his being at large without security hazardous to the           C
 community may be proved by evidence of general repute or
 otherwise.
    (5) Where two or more persons have been associated
 together in the matter under inquiry, they may be dealt with in
 the same or separate inquiries as the Magistrate shall think          D
 just.
    (6) The inquiry under this section shall be completed within
 a period of six months from the date of its commencement,
 and if such inquiry is not so completed, the proceedings under
 this Chapter shall, on the expiry of the said period, stand           E
 terminated unless, for special reasons to be recorded in writing,
 the Magistrate otherwise directs:
    Provided that where any person has been kept in detention
 pending such inquiry, the proceeding against that person, unless
 terminated earlier, shall stand terminated on the expiry of a         F
 period of six months of such detention.
    (7) Where any direction is made under sub-section (6)
 permitting the continuance of proceedings, the Sessions Judge
 may, on an application made to him by the aggrieved party,
 vacate such direction if he is satisfied that it was not based on
                                                                       G
 any special reason or was perverse.
 117. Order to give security.—If, upon such inquiry, it is
 proved that it is necessary for keeping the peace or maintaining
 good behaviour, as the case may be, that the person in respect
 of whom the inquiry is made should execute a bond, with or
                                                                       H
866     SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A     wi thout sureties, the Magistrate shall make an order
      accordingly:
             Provided that—
            (a) no person shall be ordered to give security of a nature
      different from, or of an amount larger than, or for a period
B     longer than, that specified in the order made under section 111;
            (b) the amount of every bond shall be fixed with due
      regard to the circumstances of the case and shall not be
      excessive;

C           (c) when the person in respect of whom the inquiry is
      made is a minor, the bond shall be executed only by his sureties.
      ****                      ****                     ****
      120. Contents of bond.—The bond to be executed by any
      such person shall bind him to keep the peace or to be of good
D     behaviour, as the case may be, and in the latter case the
      commission or attempt to commit, or the abetment of, any
      offence punishable with imprisonment, wherever it may be
      committed, is a breach of the bond.
      ****                      ****                     ****
E     122. Imprisonment in default of security.—
      (1) ****                  ****                     ****
      (b) If any person after having executed a bond, with or without
      sureties for keeping the peace in pursuance of an order of a
F     Magistrate under section 117, is proved, to the satisfaction of
      such Magistrate or his successor- in- office, to have committed
      breach of the bond, such Magistrate or successor- in— office
      may, after recording the grounds of such proof, order that the
      person be arrested and detained in prison until the expiry of
      the period of the bond and such order shall be without prejudice
G     to any other punishment or forfeiture to which the said person
      may be liable in accordance with law.
      ****                      ****                     ****
      446. Procedure when bond has been forfeited.—(1) Where
      a bond under this Code is for appearance, or for production of
H
ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                            867
           [DINESH MAHESHWARI, J.]

 property, before a Court and it is proved to the satisfaction of      A
 that Court or of any Court to which the case has subsequently
 been transferred, that the bond has been forfeited,
    or where, in respect of any other bond under this Code, it is
 proved to the satisfaction of the Court by which the bond was
 taken, or of any Court to which the case has subsequently             B
 been transferred, or of the Court of any Magistrate of the first
 class, that the bond has been forfeited,
    the Court shall record the grounds of such proof, and may
 call upon any person bound by such bond to pay the penalty
 thereof or to show cause why it should not be paid.                   C
     Explanation.—A condition in a bond for appearance, or
 for production of property, before a Court shall be construed
 as including a condition for appearance, or as the case may be,
 for production of property, before any Court to which the case
 may subsequently be transferred.                                      D
    (2) If sufficient cause is not shown and the penalty is not
 paid, the Court may proceed to recover the same as if such
 penalty were a fine imposed by it under this Code:
    Provided that where such penalty is not paid and cannot be
 recovered in the manner aforesaid, the person so bound as             E
 surety shall be liable, by order of the Court ordering the
 recovery of the penalty, to imprisonment in civil jail for a term
 which may extend to six months.
    (3) The Court may, after recording its reasons for doing so,
 remit any portion of the penalty mentioned and enforce                F
 payment 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 the
 bond.
    (5) Where any person who has furnished security under              G
 section 106 or section 117 or section 360 is convicted of an
 offence the commission of which constitutes a breach of the
 conditions of his bond, or of a bond executed in lieu of his bond
 under section 448, a certified copy of the judgment of the Court
 by which he was convicted of such offence may be used as              H
868            SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A           evidence in proceedings under this section against his surety
            or sureties, and, if such certified copy is so used, the Court
            shall presume that such offence was committed by him unless
            the contrary is proved.”
            8. In challenge to the orders aforesaid, learned counsel for the
B     appellant has submitted that the amount sought to be recovered from
      the appellant, a daily-wage earner is exceptionally high and is wholly
      unjustified. The learned counsel has further argued that the bond for
      keeping the peace was executed for the upcoming Panchayat
      Elections and after its successful completion, the same was rendered
      redundant. He has further contended that even if certain discretionary
C     powers are vested with administrative authorities, the same cannot
      be exercised arbitrarily like in the present case, where a direction
      has been issued to the appellant to deposit a huge sum of Rs. 5,00,000/
      - by forfeiting the bond without even appreciating the facts and
      circumstances of the case and simply on the basis of an ex parte
D     report submitted by the Revenue Inspector/ Lekhpal.
             9. Per contra, learned counsel for the State has submitted
      that the impugned orders of the High Court, Revisional Court and the
      Magistrate are in accordance with law and are not required to be
      interfered with by this Court. He has further submitted that the
E     appellant 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.

F           10. We have heard the learned counsel for the parties and
      perused the material placed on record.
             11. As noticed, 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
G     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,
H
    ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                            869
               [DINESH MAHESHWARI, J.]

he is satisfied that such person is either likely to commit breach of      A
peace or disturb public tranquillity or is likely to commit any wrongful
act that might probably produce the same result. Simply stated, the
provisions of Chapter VIII of the Code are merely preventive in nature
and are not to be used as a vehicle for punishment.
      12. Moreover, the object of furnishing security and/or executing     B
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 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       C
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   D
of Chapter VIII of the Code, which remains impermissible.
       13. 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      E
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            F
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.                                                  G
      14. 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       H
870            SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A     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
B
      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.
             15. Even if it be assumed that apart from his alleged actions of
C     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,
D     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
E     is an amount of only Rs. 500/-.
             16. 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
F     appellant; and the fact that the appellant is a daily-wage earner and
      would not have proper means to arrange the bond amount, 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’être of Section 107
G     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.
            17. In view of the above, to meet the ends of justice and with
      the discretion of remitting the penalty vested in Court, the present
H     appeal is allowed to the extent that the amount to be deposited by the
    ISTKAR v. THE STATE OF UTTAR PRADESH & ANR.                             871
               [DINESH MAHESHWARI, J.]

appellant is reduced to the nominal amount of Rs. 5,000/- (Rupees           A
Five T housand) owing to the peculiarity of the facts and
circumstances of the present case.
      18. It is hereby directed that the amount be deposited by the
appellant within six weeks from the date of receipt of a copy of this
judgment.                                                                   B

Divya Pandey                                       Appeal partly allowed.
(Assisted by : Deepak Panwar, LCRA)


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