Lalan Prasad Singh vs The State Of Bihar Through The Principal … on 7 April, 2026

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    Patna High Court

    Lalan Prasad Singh vs The State Of Bihar Through The Principal … on 7 April, 2026

    Author: Jitendra Kumar

    Bench: Jitendra Kumar

              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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    SPONSORED

    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
    20/24

    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.”

    Patna High Court CR. WJC No.1119 of 2021 dt.07-04-2026
    21/24

    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
    22/24

    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
    23/24

    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.
    Patna High Court CR. WJC No.1119 of 2021 dt.07-04-2026
    24/24

    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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