This article is written by Shiwangi Singh, a law student at Banasthali University. This article gives detailed information on various aspects of Section 107 CrPC which gives power to the executive wing of the government to pass orders. Being preventive in nature, it regulates public tranquillity and prohibits a person from committing any wrongful act.

It has been published by Rachit Garg.

Introduction

The Code of Criminal Procedure was enacted in 1973 and came into force on April 1, 1974. The criminal procedure gives a detailed structure for conducting trials in a criminal case. It deals with the procedure for registering a complaint, conducting a trial, passing an order, and filing an appeal against any order.

The main objective of this code is to give a fair chance to the accused person to conduct a fair trial according to the principle of natural justice. This code’s detailed structure regulates the various procedures of arresting an accused or investigating any criminal case. It lay downs the procedure to hold a trial for any criminal offence committed in a court of law.

This code contains 484 sections under 37 chapters. The criminal procedure code applies to India and regulates criminal law in India. It is a body of law that determines the procedure for deciding whether a person is guilty or innocent and collects evidence regarding that.

Section 107 of CrPC authorises a Magistrate, in case of emergency when breach of peace is imminent, to order the accused person to agree to a bond which asks him to maintain peace for the prescribed period of time as the Judge thinks would fit.

Section 107 CrPC

Chapter VIII of the Criminal Procedure Code contains Section 107, which talks about the security for keeping the peace and for good behaviour. The main aim of the provisions mentioned in this section is to prevent any kind of wrong act or breach of peace from occurring. This chapter is preventive in nature and scope. It is mainly focused on a person who is a danger to the public because of a certain offence they are likely to cause. The Executive Magistrate holds a strong power of jurisdiction by getting a person to agree to execute a bond of peace.

The gist of this chapter is the prevention of crimes and disturbances that might breach public peace, these provisions are not for the acts that are done openly but regarding an act that has the potential to cause danger to the peace of society. The provisions are essentially in the interest of the general public and follow clauses (2), (3), (4), and (5) of Article 19 of the Constitution of India. Section 107 gives the power to the Executive Magistrate to order a bond with the person before an offence is committed. The accused person is taken to detention only if he fails to execute and abide by the bond that is ordered by the magistrate.

In the essence of chapter VIII of the code, here security refers to furnishing guarantee to the satisfaction of the court, which is exactly the purpose of Section 107, where the court orders that a certain conduct is mandatory to be maintained for a certain period by a certain person concerning a certain thing.

Provisions of Section 107 CrPC

  • Section 107(1) – When an Executive Magistrate gets information from a trustable source about a person who is suspected to breach the peace of the public, disturbing public tranquility, causing danger to public harmony, or committing any sort of wrongful act, then on sufficient ground and evidence, the magistrate can call upon that person and then he would be asked the reasons of why he should not be compelled to agree with the bond (with or without surety) for maintaining peace for a required period of time of not more than a year, but for a time period said by the magistrate as he thinks would fit for the current prevailing situation in his jurisdiction.
    • Here surety means that the accused would be appointed with a person of his choice who would take his legal responsibility in case he fails to execute the bond. For example – if a person fails to pay a fine then the person who was appointed as his surety will have to pay the amount in his place.
  • Section 107(2) – The proceedings for such person can be taken before any Executive Magistrate who has jurisdiction over the place where the breach of peace or disturbance is likely to occur or the person who is accused of committing a wrongful act of causing the breach of peace, disturbing public tranquility falls under his jurisdiction.

This section mainly gives the executive wing the power to apprehend a person if he is likely to disturb the peace and public tranquility but not for more than a year.

Objective of Section 107 CrPC

  • The nature of the proceedings under section 107 is preventive justice. Whenever an offence is committed by a person which is substantive and has actually taken place then that person is prosecuted legally by obeying suitable laws and orders, in this case, Section 107 is not applied as the offence has already been committed and now there’s nothing to prevent.
  • Before taking any action against the accused person, the magistrate shall be satisfied that there are appropriate and important reasons for taking action against that person before he breaches the peace and the magistrate shall record reasons for his satisfaction.
  • A person can be taken under action if he is likely to – 
  • Commit a breach of the peace;
  • Disturb public tranquility;
  • Has the potential to commit a wrongful act that might disturb public peace.
  • The powers under this section are specifically vested in the hands of the Executive Magistrate, who is a part of the executive wing of the government and not the judiciary.
  • Two things are necessary for a judge to look into before he issues a warrant against the accused person – 
  • The information must be laid before a magistrate.
  • The magistrate shall be satisfied with the reasons and should get an ample amount of evidence and then proceed with the case. The source of information can be anyone, it is not necessary that it should have come from the police but the source shall be reliable and trustworthy for the judge.
  • A bond is asked to be executed by the accused person for “keeping peace”. The Magistrate has no power to ask for the execution of a bond for maintaining good behaviour, if the judge does that he is contravening this section.

Jurisdiction of the Executive Magistrate under Section 107 CrPC

An Executive Magistrate has the authority to take up a case under section 107, only if – 

  • The accused person or the place where the disturbance is likely to happen falls under his jurisdiction.
  • A person who ordinarily resides within jurisdiction can be called upon by the Executive Magistrate under Section 107 even if the accused person is temporarily absent. Even a temporary residence is enough.
  • Two opposing parties of hostile groups cannot be proceeded against and bound over in one and the same proceeding under Section 107. Such an order will spoil the gist of law and would be eventually quashed by the judge.
  • If a person is on trial under Sections 107-116 of CrPC, and his proceeding is still pending then a second set of proceedings cannot be initiated against him. In Rajendra Singh v. State of UP 1993, the Allahabad court quashed the second set of proceedings holding that successive proceedings during the pendency of earlier ones would only amount to harassment.

Nature of information received by the Magistrate

  • The information must be clear and definite, closely associated with the person against whom the process is issued, and should disclose tangible facts and details, that could also convince the accused person on what grounds he has been brought before the court.
  • There must be satisfactory evidence that the person has done something or taken some steps that indicate an intention to break the peace or that he is likely to disturb the public tranquility.
  • To pass an order under section 107, the past acts of the person will not hold great relevance, there shall be evidence regarding a breach of peace that might occur in near future.

Power of Police Department in cases regarding Section 107 CrPC

  • Section 107 does not vest any power in the hands of the Police to arrest.
  • The Police department has no power to arrest the accused or register an FIR under section 107 and 145 of CrPC. Registering cases under the said sections will be considered unsustainable and illegal.

Circumstances under which a Magistrate can drop the proceedings

  • A Magistrate has the power to drop the proceeding initiated under this section at any stage, even if an order is passed under section 111 or before an inquiry under section 116.
  • If the magistrate receives fresh materials implying that there is no possibility of peace getting breached.
  • If the material on record discloses that though there was a danger of breach of the peace at one time but subsequently, the threat has disappeared then the court can drop the proceedings and discharge the person proceeded against.
  • He can also drop the proceedings if the evidence presented was found in old records and not regarding the present circumstances.
  • If the inquiry conducted against that person gives no correct evidence against the person then the person called to execute the bond will be considered illegal.
  • If the reports of the police make no substantial proof regarding the breach that might happen, would also lead to the drop of the proceeding against that person.
  • If an order is passed without inquiry and recording evidence, the allegations would be considered not valid.
  • A person cannot be compelled to execute the bond without proper inquiry and recording of evidence, one cannot be asked to carry out the bond without giving him a chance to prove why he is not liable to execute the bond. If it happens it would be against the principles of natural justice and fairness.

The Magistrate must supply the copies of incriminating material relied upon by him to the person against whom proceedings are initiated.

Relevant Case Laws

  1. In Madhu Limaye and Anr. v. SDM Monghyr and Ors. 1971, the Supreme Court explained the terms public tranquility and public order so that there exists no ground for confusion; the court held that public tranquility and public order partially overlap each other. While a person playing loud music might disturb public tranquility but not public order.
  2. In M.V Santosh v. State of Kerala, 2014, the court held that “the breach of peace must be imminent to justify action under Section 107. The information about past conduct or wrongful acts of the past must not be remote or isolated, must be relatable to the present apprehension in the sense that it must have some relevance to the apprehension of likelihood of breach of peace or disturbance of public tranquility”.

Section 107 of CrPC gives the power to the executive wing of the government to regulate and keep a check on public peace. However, no one can be illegally called upon to execute the bond without any substantial evidence for keeping the peace. The Police also have no power to detain a person under this section but can only inquire with their team to collect and record the evidence that could be presented before the Executive Magistrate.

Conclusion

Section 107 defines the circumstances under which a person maybe called upon to furnish security to keep the peace. There are several situations that occur where we can’t arrest someone but can make someone follow the law and order in an alternate way. This alternate way is provided by Section 107 of CrPC. The proceedings under Section 107 are not penal in nature and are only preventive.

Frequently Asked Questions

  1. Which magistrate has the power to give judgments on cases under  Section 107 of CrPC?

The Executive Magistrate has the power to give judgments on cases under Section 107 of CrPC.

  1. The maximum period for which security for keeping peace can be asked for?

It could be asked for one year. The period of one year starts from the date on which the magistrate takes into awareness and starts the proceeding under section 107. The inquiry under this section shall be completed within six months from the date of commencement.

References


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