In the recent case of Parmatma Prasad Mishra and 10 others v. State of UP and Another, it was held that an Inquiry under Section 116 of Criminal Procedure Code 1973 is necessary before an order is passed under Section 117 of Criminal Procedure Code 1973. In a petition under Section 482 of the Criminal Procedure Code before the High Court, the High Court quashed such an order under Section 117 due to lack of an inquiry.
Chapter VIII of the Criminal Procedure Code 1973 deals with Security for keeping the peace and for good behavior. Sections 106 of the Criminal Procedure Code, deal with security for keeping peace and maintaining public tranquility by convicted person. The order under Section 106 is passed by the Magistrate or the Sessions Court while delivering the sentence after conviction of the accused.
Section107, 108, 109, and 110 of the Criminal Procedure Code provide for powers of the executive magistrate to send a show-cause notice to the concerned person before issuing orders for bonds for good behavior. Section 111 of the Code substantiates the power of the Executive Magistrate to make an order for show cause notice under Section 107, 108, 109, and 110 of the Criminal Procedure Code.
Sections 112 to 115 of the Code provide for the further procedure for bringing the concerned person to Court in whose respect the order of show cause has been passed and explaining the details of the order to such person, or read the contents of the order to such person.
Section 116 of the Code provides for inquiry. An Inquiry must be made to uncover the truth of the information on the basis of which the person has been brought to the Court and proceedings have been initiated against such person.
Sub-section (3) of Section 116 of the Code provides for the power of the Magistrate to take immediate measures for the execution of bond in light of the imminent breach of peace or disturbance to public tranquility. Furthermore, the person concerned can also be detained in custody if the Magistrate deems fit until the bond is executed. The inquiry under Section 116 of the Criminal Procedure Code must be completed within 6 months from the date of commencement of the inquiry.
Upon such inquiry, an order under Section 117 of the Code requiring execution of the bond may be passed against the accused person if the inquiry necessitates so. If the inquiry suggests otherwise, the Magistrate shall discharge the person from the proceedings.
The right to liberty is a fundamental right provided under Article 21 of the Constitution of India. This Right cannot be violated except in accordance with the procedure established by law. Thus, the procedure under Chapter VIII of the Code must not be violated in any circumstance. Any violation will be a direct attack on the liberty of the individual.
You can read the complete judgment here.