Patna High Court
LALAN PRASAD SINGHversusTHE STATE OF BIHAR THROUGH THE PRINCIPAL SECR., FOOD AND CIVIL SUPPLY DEPTT., GOVT. OF BIHAR PATNA
- Decided
- Disposal
- ALLOWED
- Bench
- JITENDRA KUMAR
Holding
The proceeding under Section 107 Cr.PC was beyond the jurisdiction of the Executive Magistrate and is hereby quashed.
Summary
The petitioner, Lalan Prasad Singh, challenged the initiation of proceedings under Section 107 of the Criminal Procedure Code (Cr.PC) by a Sub‑Divisional Magistrate, which resulted in a bond of Rs 1,00,000 with two sureties for one year. The magistrate had acted on a complaint alleging that the petitioner harassed PDS dealers and threatened false cases, but no specific overt act indicating an imminent breach of public peace was established. The High Court examined the scope of Section 107, emphasizing its preventive, not punitive, nature and the requirement of a concrete threat to public order. It held that the magistrate exceeded his jurisdiction as the alleged conduct did not amount to a danger to public peace and the petitioner should have faced ordinary criminal prosecution. The Court also considered the availability of alternative remedies and the infringement of the petitioner’s fundamental right to liberty under Article 21. Consequently, the writ petition was allowed and the entire proceeding under Section 107 was quashed.
Issues considered
- The jurisdiction of an Executive Magistrate to initiate proceedings under Section 107 Cr.PC in the present facts.
- Whether the writ petition is maintainable and entertainable under Article 226 despite the existence of alternative statutory remedies.
- Whether the order infringes the petitioner’s fundamental right to liberty under Article 21.
- Whether the absence of a specific overt act precludes the application of Section 107 Cr.PC.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023
- Code of Criminal Procedure, 1973 — s. 107, 111, 116, 117, 118
Subjects
- Section 107 Cr.PC
- preventive jurisdiction
- executive magistrate
- writ of certiorari
- Article 21
- public peace
- alternative remedy
- Article 226
- bond
- liberty
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1119 of 2021
======================================================
Lalan Prasad Singh S/O Late Swarup Lal Prasad Singh @ Swarup Lal Singh,
R/O Village And Post- Pakra, Ward No. 5, P.S.- Naugachchia, District-
Bhagalpur, State- Bihar
... ... Petitioner
Versus
1. The State Of Bihar through The Principal Secretary., Food And Civil Supply
Deptt., Govt. Of Bihar, Patna.
2. The Director, Food and Civil Supply Department, Government of Bihar,
Patna
3. The Information and Technology Department, Government of Bihar, Patna
4. The District Magistrate-cum-Collector, Bhagalpur
5. The District Food Supply Officer, Bhagalpur
6. The Superintendent of Police, Bhagalpur
7. The Deputy Superintendent of Police (Rural), Naugachchiya Bhagalpur
8. The Sub-Divisional Officer-cum- Sub-Divisional Magistrate, Naugachchia,
Bhagalpur
9. The Officer-in-charge, Naugachchia
10. The Block Marketing Officer, Naugachchia, Bhagalpur
11. The Assistant District Supply Officer, Naugachchia, Bhagalpur
... ... Respondents
======================================================
Appearance :
For the Petitioners : Mr. Shambhu Sharan Singh, Advocate
For the State : Mr. Vijay Kumar Sinha, AC to AAG-5
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 07-04-2026
The present criminal writ petition has been
preferred by the petitioner seeking quashing of the entire
proceeding in Case No. 437 of 2021 initiated vide order dated
03.04.2021 passed by learned Sub-Divisional Magistrate,
Naugachhia, Bhagalpur under Section 107 Cr.PC.
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2. The said proceeding has been initiated by learned
Executive Magistrate in the light of the letter bearing No. 243
dated 03.04.2021 written by Assistant District Supply Officer,
Naugachhia. As per the letter, the petitioner unnecessarily
harasses the PDS dealers. He also demands money from them
and on account of non-payment of the same, he threatens to
implicate them in false cases.
3. In view of the letter, the proceeding under Section
107 Cr.PC was initiated against the petitioner herein by
learned S.D.M to maintain the peace. Learned S.D.M also
directed the petitioner herein to appear before him to show
cause why bond of Rs.1,00,000/- with two sureties is not
executed by him to maintain peace for a year. Accordingly,
notice was issued to the petitioner by learned S.D.M.
4. On notice, the petitioner appeared before learned
S.D.M. and filed his show cause, submitting that the petitioner
had filed two R.T.I. petitions against District Supply Officer in
regard to distribution under Pradhanmantri Pravasi Majdoor
and regarding his movable and immovable property and
hence, the false complaint has been made by the Assistant
District Supply Officer against the petitioner herein which
leading to initiation of the present proceeding under Section
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107 Cr.PC.
5. Evidence was also invited from both the sides
and on the basis of the pleading and the evidence, the learned
S.D.M. came to the finding that the petitioner herein extended
threat of journalism to Supply Department and different
schools of Education Department and demanded money and
hence, the employees and P.D.S. dealers lived under fear from
him. Hence, there was possibility of breach of peace in his
area. Hence, he directed the petitioner herein to execute bond
of Rs.1,00,000/- with two sureties for one year to maintain
peace. This final order was passed on 02.04.2022.
6. I heard learned counsel for the petitioner and
learned AC to AAG-5 for the State.
7. Learned counsel for the petitioner submits that in
the alleged facts and circumstances, the initiation of the
proceeding under Section 107 Cr.PC against the petitioner is
totally unwarranted and beyond the extent and scope of
jurisdiction of the Executive Magistrate under Section 107
Cr.PC. The whole proceeding is absolutely malafide and
arbitrary and, accordingly, liable to be quashed.
8. He also submits that though the final order in the
proceeding initiated under Section 107 Cr.PC has been passed
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concluding the proceeding and even the period of the bond of
one year has lapsed, the adjudication of the legal issue
regarding maintainability of such proceeding under Section
107 Cr.PC in the alleged facts and circumstances, requires to
be adjudicated by this Court, so that Executive Magistrates do
not misuse the proceeding under Section 107 Cr.PC to harass
the common citizens.
9. However, learned AC to AAG-5 defends the
initiation of proceeding under Section 107 Cr.PC. He also
submits that the proceeding under Section 107 Cr.PC has been
already concluded vide final order dated 02.04.2022 by which
the petitioner was directed to execute the bond for one year
and even that period of one year has passed. Hence, the
present writ petition has become infructuous, and, therefore,
there is no need to adjudicate the matter.
10. I considered the submissions advanced by both
the parties and perused the material on record including the
record of learned S.D.M.
11. Undisputedly, the proceeding initiated under
Section 107 Cr.PC against the petitioner is already concluded
vide order dated 02.04.2022 and even the period of bond
required to be executed by the Petitioner herein to maintain
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peace for one year has passed. However, in view of the
importance of the issue involved, I consider it fit to dispose of
the present writ petition on merit, so that law regarding extent
and scope of the jurisdiction of Executive Magistrate under
Section 107 Cr.PC is clarified.
12. However, before I proceed to consider the rival
submissions of the parties, it would be desirable to refer to the
relevant statutory provisions and the case laws.
13. Section 107 of Code of Criminal Procedure,
1973 (hereinafter referred to as ‘Cr.PC’) reads 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 tranquility or to do any
wrongful act that may probably occasion a breach of the
peace or disturb the public tranquility 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 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 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 tranquility or to
do any wrongful act as aforesaid beyond such
jurisdiction.”
(Emphasis supplied)
14. Section 107 Cr.PC is part of chapter-VIII of the
Code containing Sections 106 to 124. Chapter-VIII deals with
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security for keeping peace and for good behaviour. Section 106
provides for security for keeping peace on conviction, whereas
Section 107 provides for security for keeping peace in other
cases. Sections 108 to 110 provide for security for good
behaviour from classified persons. Sections 111 to 124 provide
for procedure to be followed during the proceeding and other
miscellaneous matters.
15. Section 111 Cr.PC reads as follows :-
“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 to be executed, the term
for which it is to be in force, and the number, character
and class of sureties (if any), required.”
16. Section 116 Cr.PC reads as follows :-
“116. Inquiry as to truth of information.- (1)
When an order under section 111 has been read or
explained under section 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 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 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 tranquility 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
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the order under section 111 has been made to execute
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 -
(a) no person against whom proceedings are
not being taken 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 more onerous than those specified in 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 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 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 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 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 any special reason or was perverse.”
17. Section 117 Cr.PC reads as follows :-
“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,
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that the person in respect of whom the inquiry is made
should execute a bond, with or without 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 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) when the person in respect of whom the
inquiry is made is a minor, the bond shall be executed
only by his sureties.”
18. Section 118 Cr.PC reads as follows :-
“118. Discharge of person informed against.
- If, on an inquiry under section 116, it is not 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, the
Magistrate shall make an entry on the record to that effect,
and if such person is in custody only for the purposes of
the inquiry, shall release him, or if such person is not in
custody, shall discharge him.”
19. Chapter-IX of the Bharatiya Nagarik Suraksha
Sanhita, 2023 containing Sections 125 to 143 is similar to
Chapter VIII of the Cr.PC.
20. Section 111 Cr.PC requires that when the
Executive Magistrate initiates proceeding under Section 107
Cr.PC, he has to give opportunity, by an order in writing, to the
person proceeded against giving forth the substance of
information received, the amount of the bond to be executed, the
term for which it is to be enforced and the number, character
and class of the surety, if any required.
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21. Section 116 Cr.PC further requires the Executive
Magistrate to inquire into the truth of information upon which
action has been initiated and even take evidence, as may appear
necessary.
22. As per Section 117 Cr.PC, the person proceeded
against under Section 107 Cr.PC can be directed to execute a
bond for keeping peace but only if it is proved that such bond is
necessary to be executed by him to keep peace. However, if
such necessity is not proved, the petitioner is required to be
discharged.
23. From bare perusal of the provisions of Chapter-IX
of Cr.PC, it clearly transpires that the extraordinary jurisdiction
under this chapter has been given to the Executive Magistrate
for maintaining peace and good behaviour from persons who
may be danger to the peace of the society.
24. The scope and object of Chapter-IX of Cr.PC are
preventive and not punitive in nature as held by Hon’ble
Supreme Court in Madhu Limaye Vs. Sub Divisional
Magistrate Monghyr as reported in 1970 (3) SCC 746.
25. Where substantive offence is committed by a
person, the proper procedure is to institute regular prosecution
against the persons committing the offence and not to initiate
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proceeding under Section 107 Cr.PC. In Brahmdeo Singh Vs.
State of Bihar as reported in 1979 SCC OnLine Pat 172,
proceeding under Section 107 Cr.PC was initiated against the
Petitioner on account of assault that had taken place between the
parties on account of enmity which existed between them and
one police case was instituted in that connection and the
Magistrate was satisfied from the police report that at any time
rioting or any other unpleasant incident could take place
between the parties, though there was no allegation of any
additional overt-act on the part of the parties giving
apprehension of breach of peace. Here, a co-ordinate Bench of
this Court long back in 1979 held that initiation of the
proceeding under Section 107 Cr.PC was highly improper,
because the person who had allegedly committed assault was
being prosecuted and there was no allegation of additional
overt-act on his part.
26. Similar view has been taken by Kerala High Court
in Lovely Vs. State of Kerala as reported in 2023 SCC
OnLine Ker 7567, wherein proceeding under Section 107
Cr.PC was initiated against the petitioner on the basis of her
alleged involvement in a registered crime. Here Kerala High
Court held that initiation of proceeding against the petitioner
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was not just and proper, holding that Section 107 Cr.PC is not
intended to punish persons for anything done in the past but to
prevent them from doing in future something that might
occasion a breach of the peace. The section is designed to
enable the Magistrate to take measures with a view to
preventing the commission of offenses involving a breach of
peace or disturbance of public tranquility.
27. In Jayanth K.C. Vs. State of Kerala as reported
in 2025 KHC 1591, Kerala High Court reiterated the similar
view as held in Lovely Case (supra). Here proceeding under
Section 107 Cr.PC was again initiated on the basis of a
registered crime against the petitioner and it was held that being
an accused in a case alone, was not sufficient to initiate
proceeding under Section 107 Cr.PC and the breach of peace
which was sought to be prevented by requiring the accused to
execute a bond under Section 107 Cr.PC should have been
imminent and not a distant possibility.
28. It is also very pertinent to point out that Chapter-
VIII of Cr.PC, of which Section 107 is a part, is intended to
maintain public peace and tranquility and the concept of public
peace is much wider than the instances of tension between few
individuals or problem of law and order. Public order and peace
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affects public at large. If the effect of any dispute or tension is
confined only to few individuals who are party to dispute, such
dispute could not give any apprehension of breach of public
peace and tranquility. Hence, such situations are not
contemplated under Section 107 Cr.PC giving extraordinary
jurisdiction to the Executive Magistrate. In Christalin Costa
Vs. State of Goa and Ors. as reported in 1992 SCC OnLine
Bom 252, there was strained relationship between two
individuals. There was complaint and counter-complaint against
each other and, on account of the Complaint filed, proceeding
under Section107 Cr.PC was initiated against the party. Here,
Bombay High Court, long back in 1992 held that bare perusal of
Section 107 Cr.PC read with Section 111 shows that such
proceedings are to be initiated only in respect of information
received by the Magistrate, if he is satisfied that there is danger
or likelihood of somebody committing breach of peace and
disturbing public tranquility. It was further held that the
situation, where there are quarrels between two private
individuals, is not contemplated by Section 107 Cr.PC read with
Section 111 Cr.PC, because quarrel between individuals are not
normally creating any problem of public order and at the most it
may lead to a problem of law and order to be dealt with by
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appropriate penal law. Bombay High Court in paragraph no.7
had further held that the proceeding under Section 107 Cr.PC
are always dealing with preventive measures to be taken by the
Magistrates not to prevent any possibility of breach of peace and
disturbing the public tranquility.
29. The view taken by Bombay High Court in
Christalin Costa case (supra) was reiterated by it in Perswami
Kandswami Devendra Vs. Sr. Inspector of Police as reported
in 2003 SCC OnLine Bom 251, wherein Bombay High Court
has held that domestic quarrels, petty quarrels between
neighbouring persons, which do not have long life, are not the
subject matters of the actions to be taken in view of section 107
of the Code. The energy and time of public servant concerned
should not be wasted in such trifling matters or for satisfying the
personal vendetta or for the purpose of giving lessons to each
other.
30. Similar view has been also taken by Bombay High
Court in Sandeep Shivaji Mhatre Vs. The State of
Maharahtra and Anr. as reported in 2014 SCC OnLine Bom
5297. Here, the Executive Magistrate had initiated proceeding
under Section 107 Cr.PC against the petitioner on the basis of
FIR and the report forwarded by the police. Here Bombay High
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Court held that such proceeding could not be justified merely on
the basis of solitary instance of violence between two
individuals.
31. In Ram Prakash and Anr. Vs. State as reported
in 1996 SCC OnLine Del 314, Delhi High Court quashed the
proceeding under Section 107 Cr.PC which was initiated in view
of dispute between landlord and tenant.
32. It would be also pertinent to point out that vague
allegation cannot be the basis of initiation of proceeding under
Section 107 Cr.PC. There must be allegation of specific overt-
act giving apprehension of breach of public peace. Here, one
may refer to Kuldeep Singh and others Vs. The State of Bihar
and Ors. as reported in 1988 SCC OnLine Pat 77, where
proceeding under Section 107 Cr.PC was initiated. There was
nothing on record to show that the Petitioner had contributed
anything or had done any wrong or committed any overt-act
giving rise to reasonable apprehension of breach of peace at his
instance. The allegation was absolutely vague. The notice given
to the Petitioner only showed that breach of peace was
apprehend between the parties because of pendency of the case
under the B.B.C. Act. Here, co-ordinate Bench of this Court
long back in 1988 held in paragraph no. 6 of the Judgment that
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it is a fundamental requirement of the law that there must be
some material to show that the Petitioner had committed any
overt-act or any wrong, so that reasonable apprehension of
breach of peace could be apprehended at his instance and for
that purpose, specific overt-act must be assigned against him
who is proceeded against under Section 107 Cr.PC, and hence,
initiation of any proceeding for want of specific overt-act or
wrong cannot be sustainable.
Whether Criminal Writ Petition is
maintainable/ entertainable?
33. The maintainability/entertainability of the writ
petition against initiation of proceeding under Section 107
Cr.PC vide order dated 03.04.2021 passed by learned Sub-
Divisional Magistrate, Naugachhia, Bhagalpur arises in view of
the statutory remedy under Criminal Procedure Code against the
impugned order dated 03.04.2021, passed by learned Executive
Magistrate. Vide order dated 03.04.2021, learned Executive
Magistrate issued show cause to the petitioner, giving substance
of the allegation, why the petitioner should not be directed to
execute bond of Rs.1,00,000/- with two sureties for one year.
34. Here the petitioner could have challenged the
interlocutory order dated 03.04.2021 passed by learned
Executive Magistrate under Section 482 Cr.PC invoking
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inherent jurisdiction of this Court. However, he has preferred
criminal writ petition against the impugned order dated
03.04.2021 and the entire proceeding initiated under Section
107 Cr.PC.
Availability of Efficacious Alternative Remedy And
Entertainaibility/Maintainability of Writ Petition Under
Article 226 Of The Constitution.
35. The question arises, whether the writ petition is
maintainable in view of the availability of the efficacious
alternative remedy to the Petitioners. Here, it may be pointed
out that maintainability and entertainability of a writ petition are
distinct concepts. The objection as to maintainability goes to the
root of the matter and if such objection is found to be of
substance, the Court is rendered incapable of even receiving the
lis for adjudication. However, the question of entertainability is
entirely within the realm of discretion of the High Court, as writ
remedy is discretionary. Writ Petition, despite being
maintainable may be not entertained by a High Court for many
reasons or relief could even be refused to the Petitioners, despite
setting up a sound legal point, if grant of the claimed relief
would not further public interest. It may be further pointed out
that availability of efficacious alternative remedy is not an
absolute bar to maintainability of a writ petition. However, the
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Court can still refuse to entertain the writ petition, if the
Petitioner has efficacious alternative remedy as held by Hon’ble
Supreme Court in Godrej Sara Lee Ltd. Vs. Excise and
Taxation Officer-cum-Assessing Authority and Others as
reported in (2023) SCC OnLine SC 95. Relevant paragraph of
the judgment reads as follows:
“4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
conferred by article 226 of the Constitution having come
across certain orders passed by the High Courts holding
writ petitions as "not maintainable" merely because the
alternative remedy provided by the relevant statutes has
not been pursued by the parties desirous of invocation of
the writ jurisdiction. The power to issue prerogative writs
under article 226 is plenary in nature. Any limitation on
the exercise of such power must be traceable in the
Constitution itself. Profitable reference in this regard may
be made to article 329 and ordainments of other similarly
worded articles in the Constitution. Article 226 does not,
in terms, impose any limitation or restraint on the exercise
of power to issue writs. While it is true that exercise of
writ powers despite availability of a remedy under the
very statute which has been invoked and has given rise to
the action impugned in the writ petition ought not to be
made in a routine manner, yet, the mere fact that the
petitioner before the High Court, in a given case, has not
pursued the alternative remedy available to him/it cannot
mechanically be construed as a ground for its dismissal. It
is axiomatic that the High Courts (bearing in mind the
facts of each particular case) have a discretion whether to
entertain a writ petition or not. One of the self-imposed
restrictions on the exercise of power under article 226 that
has evolved through judicial precedents is that the High
Courts should normally not entertain a writ petition, where
an effective and efficacious alternative remedy is
available. At the same time, it must be remembered that
mere availability of an alternative remedy of appeal or
revision, which the party invoking the jurisdiction of the
High Court under article 226 has not pursued, would not
oust the jurisdiction of the High Court and render a writ
petition "not maintainable". In a long line of decisions,
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this court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to
the "maintainability" of a writ petition and that the rule,
which requires a party to pursue the alternative remedy
provided by a statute, is a rule of policy, convenience and
discretion rather than a rule of law. Though elementary, it
needs to be restated that "entertainability" and
"maintainability" of a writ petition are distinct concepts.
The fine but real distinction between the two ought not to
be lost sight of. The objection as to "maintainability" goes
to the root of the matter and if such objection were found
to be of substance, the courts would be rendered incapable
of even receiving the lis for adjudication. On the other
hand, the question of "entertainability" is entirely within
the realm of discretion of the High Courts, writ remedy
being discretionary. A writ petition despite being
maintainable may not be entertained by a High Court for
very many reasons or relief could even be refused to the
petitioner, despite setting up a sound legal point, if grant
of the claimed relief would not further public interest.
Hence, dismissal of a writ petition by a High Court on the
ground that the petitioner has not availed the alternative
remedy without, however, examining whether an
exceptional case has been made out for such entertainment
would not be proper.
(Emphasis supplied)
36. It has been also held by Hon’ble Supreme Court in
Whirlpool Corporation Vs. Registrar of Trade Marks,
Mumbai and Ors. as reported in (1998) 8 SCC 1 that power to
issue prerogative writs under Article 226 of the Constitution is
plenary in nature and is not limited by any other provision of the
Constitution. The High Court has discretion to entertain or not
to entertain a writ petition and the High Court has imposed upon
itself certain restrictions, one of which is that if an effective and
efficacious alternative remedy is available to the Petitioner, the
High Court would not normally exercise its jurisdiction.
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However, this restriction is not an absolute bar to
maintainability of the writ petition. The High Court can
entertain the writ petition in the following three contingencies,
namely the writ petition has been filed for enforcement of any
of the Fundamental Rights or where there has been any violation
of Principle of Natural Justice or where the order or proceedings
are wholly without jurisdiction or the vires of an Act is
challenged. The relevant paragraph of the judgments reads as
follows:
“14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provision of the Constitution.
This power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain
restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to
operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement
of any of the Fundamental Rights or where there has been
a violation of the principle of natural justice or where the
order or proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora of case-
law on this point but to cut down this circle of forensic
whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold
the field.”
(Emphasis supplied)
Patna High Court CR. WJC No.1119 of 2021 dt.07-04-2026
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37. In Radha Krishan Industries vs. State of
Himachal Pradesh and Others as reported in (2021) 6 SCC
771 Hon’ble Supreme Court has further held as follows after
referring to relevant Judicial precedents:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well.
27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions placed on
the power of the High Court is where an effective alternate
remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise
where : (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part III
of the Constitution; (b) there has been a violation of the
principles of natural justice; (c) the order or proceedings
are wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an efficacious
alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right
or liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and
discretion.
27.6. In cases where there are disputed questions of
fact, the High Court may decide to decline jurisdiction in a
writ petition. However, if the High Court is objectively of
the view that the nature of the controversy requires the
exercise of its writ jurisdiction, such a view would not
readily be interfered with.
28. These principles have been consistently upheld
by this Court in Chand Ratan v. Durga Prasad, (2003) 5
SCC 399, Babubhai Muljibhai Patel v. Nandlal Khodidas
Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of
India, (2008) 5 SCC 632] among other decisions.”
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38. Hence, it clearly transpires that in view of
efficacious alternative remedy being available to the petitioner,
writ petition is generally not entertained, though availability of
efficacious alternative remedy is not absolute bar to
entertainability of the writ petition. In the following situations,
writ petition is entertainable :- (i) The writ petition been filed for
the enforcement of a fundamental right protected by Part III of
the Constitution. (ii) There has been a violation of principles of
nature justice. (iii) The order or proceedings are wholly without
jurisdiction. (iv) The vires of a legislation is challenged.
Present Case
39. Coming to the case on hand, I find that the
proceeding under Section 107 Cr.PC has been initiated against
the petitioner by the Executive Magistrate on letter bearing No.
243 dated 03.04.2021 written by Assistant District Supply
Officer, Naugachia to the Executive Magistrate and as per the
letter, allegation against the petitioner is that he harasses the
P.D.S. dealers and he also demands money from them and on
account of non-fulfillment of the same, he threatens them to
implicate in false cases. It further transpires from the record that
after inquiry, learned Executive Magistrate came to the finding
that the petitioner extended threat of journalism to Supply
Patna High Court CR. WJC No.1119 of 2021 dt.07-04-2026
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Department and different schools of Education Department and
demanded money and hence, employees and P.D.S. dealers lived
under fear from the petitioner. On the basis of such finding,
learned Executive Magistrate reach the conclusion/satisfaction
that there was possibility of breach of peace in his area and
hence, he directed the petitioner to execute bond of
Rs.1,00,000/- with two sureties for one year to maintain peace.
40. However, on scrutiny of the alleged facts and
circumstances against the petitioner, it clearly transpires that at
most the petitioner has committed substantive offence
punishable under the Indian Penal Code and hence, he should
have been prosecuted for such offences. There was no allegation
of any overt-act which could give apprehension of breach of
public peace and tranquility. It has been already found that
Section 107 Cr.PC is preventive in nature and not punitive. If
the petitioner or accused had committed any offence, he could
have been prosecuted, but on the basis of the offence
committed, the learned Executive Magistrate had no occasion to
initiate proceeding under Section 107 Cr.PC which confers
extraordinary jurisdiction on the Executive Magistrate for taking
preventive measure to maintain public peace and it has been
already shown that public peace is much wider concept. For
Patna High Court CR. WJC No.1119 of 2021 dt.07-04-2026
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application of the provisions under Section 107 Cr.PC, there
must be allegation of overt-act which may lead to breach of
public peace affecting the public at large. Only on account of the
fear under which some individuals may be living due to threat
being extended by the petitioner does not mean that would lead
to breach of public peace.
41. Hence, I find that learned Executive Magistrate has
initiated the proceeding without any jurisdiction. There was no
occasion for the Executive Magistrate to initiate proceeding
against the petitioner under Section 107 Cr.PC. Learned
Executive Magistrate, under the guise of acting within its
authority/jurisdiction has transcended his authority/jurisdiction.
The petitioner should have been prosecuted for the substantive
offence alleged committed by him.
42. Initiation of proceeding under Section 107 Cr.PC
against the petitioner is nothing but infringement/curtailment of
fundamental right of liberty of the petitioner as granted and
granting by the Constitution under Article 21. The life and
liberty of a citizen cannot be allowed to be curtailed or restricted
in a manner as done by the Executive Magistrate. Therefore, this
Court under Article 226 of the Constitution of India is duty
bound to entertain the writ petition and quash the proceeding.
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43. Hence, by resort to writ of certiorari, the entire
proceeding initiated under Section 107 Cr.PC vide order dated
03.04.2021, passed by learned Sub-Divisional Magistrate,
Naugachhia, Bhagalpur in Case No. 437 of 2021 is quashed.
The present petition stands allowed, accordingly.
44. Learned Registrar General is directed to send a
copy of this order to the Court of learned Executive Magistrate
concerned. Learned Registrar General is also directed to send a
copy of this order to Chief Secretary, Government of Bihar for
circulating this order amongst the Executive Magistrates for
their information.
(Jitendra Kumar, J.)
Shoaib/Chandan/
Ravishankar/-
AFR/NAFR A.F.R
CAV DATE 13.03.2026.
Uploading Date 07.04.2026.
Transmission Date 07.04.2026.
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