Madras High Court
Siva @ Sivaramakrishnan vs The Sub-Divisional Magistrate on 31 January, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 31.01.2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.16960 of 2021
and
Crl.MP(MD)No.9169 of 2021
Siva @ Sivaramakrishnan : Petitioner
Vs.
1.The Sub-Divisional Magistrate,
Paramakudi,
Ramanathapuram District.
2.The Inspector of Police,
Elanjambur Police Station,
Kadaladi Taluk,
Ramanathapuram District. : Respondents/Respondents
Prayer: Criminal Original Petition is filed under
Section 482 of the Criminal Procedure Code, to call for
the entire records pertaining to the impugned show cause
notice issued by the 1st respondent in MC No.607 of 2021,
dated07/08/2021 and quash the same.
For Petitioner : M/s.S.Sabbani Karpura Jothi
For Respondents : Mr.RMS.Sethuraman
Additional Public Prosecutor
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2
O R D E R
This petition has been filed by the petitioner
seeking quashment of the impugned show cause notice
issued by the 1st respondent in MC No.607 of 2021, dated
07/08/2021.
2.The case of the petitioner in brief:- The
petitioner is a college going student. In 2020, a case
in Crime No.123 of 2021 was registered against this
petitioner for the offences under sections 294(b), 341,
324, 506(ii) IPC. At the time of the above said
occurrence, the petitioner was juvenile. Based upon the
above said the case, the impugned notice in MC No.607 of
2021 has been initiated under section 107 of Cr.P.C.
Notice has been sent to the petitioner. Seeking quashment
of the same, this petition has been filed mainly on the
ground that the impugned notice shows that it is a
printed format and the gaps were filled up through pen.
3.Heard the learned counsel appearing for the
petitioner and the learned additional Public Prosecutor
appearing for the respondent.
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4.Reading of the entire materials on record, it is
seen that notice has been prepared in the printed format
and gaps have been filled up, which is not permissible
under law and in view of the guide lines that has been
issued by this court. This court, in a batch of criminal
original petitions in Crl.OP(MD)No.21560 of 2018 has
observed like this. The discussion in the aforesaid batch
of Criminal Original Petition runs like this:-
“4.... Way back in 1980, the Hon'ble Supreme Court in
the judgment reported in AIR 1981 SC 674 (Gopalanachari
Vs. State of Kerala), has observed the ill-effect of Section 110
Cr.P.C. Paragraph No.5 of the said judgment is extracted
hereunder:-
“A closer look at Section 110 of the Code in the setting of
peril to personal liberty thus becomes a necessity in this case.
Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader
and Senior Advocate Shri Tarkunde, agreed that unless the
preventive power under Section 110 were prevented from pervasive
misuse by zealous judicial vigilance and interpretative strictness,
many a poor man, maybe cast into prison by sticking the label of
'habitual' or by using such frightening expressions as 'desperate',
'dangerous' and 'hazardous to the community'. Law is what the law
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does, even as freedom is what freedom does. Going by that
test, Section 110 cannot be permitted in our free Republic to pick up
the homeless and the have-nots as it did when under British
subjection because to-day to be poor is not a crime in this country.
George Bernard Shaw, though ignorant of 110, did sardonically
comment that "the greatest of evils and the worst of crimes is
poverty".
5. After analyzing the provisions in the light of Article
21 of the Constitution of India, the Hon'ble Supreme Court in
the concluding paragraph has observed as under:-
“Let us allay misunderstandings. We are clear in our mind
that prevention is better than cure, in criminal law as in medicines,
especially when there is judicial supervision. Society cannot be left
at the mercy of predators and bandits who, like wild beasts, prey
upon the weak and the innocent and become a menace to peace and
security of society. But liberty is a prized value and that is why we
have insisted not merely upon the Police having to be careful before
marching poor people into court under Section 110 but the Court
itself having to be gravely concerned about using preventive
provisions against helpless persons, not on formal testimony readily
produced to order as we have noticed in a recent case,[Prem Chand
Vs. Union of India, Writ Petition No.3050 of 1980 decided on
11.11.1980, MANU/SC/0191/1980:1981 CriL J5 (SC)] but on
convincing testimony of clear and present danger to society.”
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6. So, with this cautious note struck by the Hon'ble
Supreme Court way back in 1980, while approaching the
matter under dispute, we will go to the second judgment with
regard to the consequences of dropping of proceedings or
execution of the bond for a particular period. The Hon'ble
Supreme Court in the case of Ram Narain Singh and others
Vs. State of Bihar reported in AIR 1972 SC 2225, in
paragraph No.6, has observed like this.
“6.............We may at the outset state that we find it difficult
to accede to the submission made by Mr. Singh that once the period
for which bond was ordered to be executed has expired, the order
becomes nugatory and the proceedings under section 107 of the
Code of Criminal Procedure must be dropped. The proceedings
under section 107 of the Code, in our opinion, can continue despite
the fact that the period for which the bond was required to be
executed has expired. To hold otherwise would lead to the result
that the proceedings under the section would have, to be dropped if
the person proceeded against succeeds in protecting the
proceedings, even though the apprehension of breach of peace or
disturbance of public tranquillity still persists. At, the same time,
the court is not precluded from taking into account,, the subsequent
events. If the material on record discloses that though there was a
danger of breach of peace it one time, because, of the happening of
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a subsequent event the danger of breach of peace has disappeared,
the court can drop the proceedings and discharge the person
proceeded against. Even in the absence of some positive evidence of
reconciliation between the opposing parties, if the court finds that
since, the date of incident complained of, a very long period has
elapsed during the course of which nothing untoward has
happened. the court may well draw the inference that the danger of
breach of peace has vanished. ”
7. This judgment guides us further to the effect that if
there is a long gap between the incident, that can be taken into
account. Even if the period, for which, the bond has been
executed, expired, the proceedings may not be dropped. So,
subsequent events can be taken into account and simply
because the bond was required to be expired, the proceedings
need not be dropped.
8. Now, we will go to the Full Bench decision of the
Bombay High Court in the case of Farhan Nasir Khan Vs.
State of Maharashtra and others reported in 2020 (206) AIC
9. The questions that has been referred to before the
Hon’ble Full Bench are that i) whether before issuing the
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show cause notice under Section 111 of Cr.P.C., whether
separate order must be passed by the Magistrate.
ii) Whether the aforesaid order must accompany the
show cause notice issued under Section 111 of Cr.P.C.
iii) If the show cause notice, which is in writing and
which sets forth (i) the substance of the information received,
(ii) amount of the bond, (iii) term for which it is to be in force,
(iv) number character and class sureties, if any, is required
and (v) grounds for apprehending breach of peace or
disturbance of public tranquility, whether a separate order
must be passed.
10. The Hon'ble Full Bench after going through the
entire evidence came to the conclusion that the Magistrate has
to form an opinion in writing as contemplated by Section 111
of Cr.P.C. and thereafter, proceed to issue the show cause
notice as contemplated by Section 107 of Cr.P.C. and along
with the show cause notice, the opinion must be annexed. It
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can also be done in the notice itself by integrating all the
aforesaid facts.
11. Further explaining purpose of the notice, it is
observed that the noticee must known the factual matrix
comprising either in the complaint or in the information
received and the reasons for the opinion of the Magistrate. So,
according to the Hon'ble Full Bench decision, the purpose of
the notice is to inform the noticee with regard to all relevant
facts as stated above for the purpose of giving him a fair and
full opportunity to put forth his explanation. So, this judgment
of the Hon'ble Full Bench of Bombay High Court further
guides as to the issue.
12. This position has been clarified in the famous case
of the Hon’ble Supreme Court reported in AIR 1971 SC 2486
(Madhu Limaye Vs. S.D.M.Monghyr). In paragraph Nos.36
and 37 of the aforesaid judgment, it has been observed as
under:-
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“We have seen the provisions of Section 107. That section
says that action is to be taken in the manner here-in-after provided
and this clearly indicates that it is not open to a Magistrate in such
a case to depart from the procedure to any substantial extent. This
is very salutary because the liberty of the person is involved and the
law is rightly solicitous that this liberty should only be curtailed
according to its own procedure and not according to the whim of
the Magistrate concerned. It behoves us, therefore, to emphasise the
safeguards built into the procedure because from there will arise the
consideration of the reasonableness of the restrictions in the interest
of public order or in the interest of the ,general public.
In this very case the Apex Court went on to observe in Para 37 as
under:-
Since the person to be proceeded against has to show cause,
it is but natural that he must know the grounds for apprehending a
breach of the peace or disturbance of the public tranquillity at his
hands. Although the section speaks of the 'substance of the
information' it does not mean the order should not be full. It may
not repeat the information bodily but it must give proper notice of
what has moved the Magistrate to take the action. This order is the
foundation of the jurisdiction and the word 'substance' means the
essence of the most important parts of the information.”
13. Way back in 1909, the very same Bombay High
Court in a Full Bench decision reported in
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MANU/MH/0054/1909 (Suleman Adam Vs. Emperor) deals
about the old provisions of the Code of Criminal Procedure.
There is a specific provision to the effect that summons issued
under Section 114 of Cr.P.C. must be accompanied by a copy
of the order made under Section 112 of Cr.P.C. It appears that
this mandatory requirement has been brought by way of a
judicial order by the Hon'ble Bombay High Court in the
Farhan Nasir Khan’s judgment (referred supra). Now, the
position is very clear to the effect that the notice must
accompany the material that has been mentioned by the
Hon'ble Full Bench of the Bombay High Court.
14.With this backdrop in my mind, we will go to the
judgment of our High Court.
15.Even though the judgment reported in
MANU/TN/0706/2017 in the case of M.Krishnamurthy and
others Vs. Sub Divisional Magistrate cum Revenue
Divisional Officer and others is frequently quoted and
followed, after the aforesaid case, a more comprehensive
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discussion has been made in Crl.R.C.No.78 of 2020 dated
25.09.2020. As I mentioned earlier, this is very comprehensive
in nature.
16.The discussion starts from the colonial error cases,
wherein, the proceedings were initiated against
V.O.Chidambaram Pillai under Section 107 of Cr.P.C. Section
107 Cr.P.C. deals with the security for keeping the peace.
Section 110 deals about the security for good behavior from
habitual offenders.
17. A Full Bench Judgment of this Court in the case of
Yeluchuri Venkatachennaya and others Vs. Emperor
reported in AIR 1920 Madras 337 would conclude that the
proceedings under Section 107 Cr.P.C. is equal to trial
proceedings. There is one legal assistance was also permitted.
So that proposition of law was followed till date.
18. In AIR 1971 Ker 280 (FB) (Thekkittil Gopalankutti
Nair Vs. Melepurath Sankunni Ezhuthaseah), it has been
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observed that proceedings under Sections 107 to 110, 133,
144, 145 and 488 of Cr.P.C. are the judicial proceedings in
nature. It is further observed that the term 'breach of peace'
requires subjective satisfaction as basis and insofar as the
term 'good behavior' is concerned, it rests upon objectivity.
So, except class (g) of Section 110 Cr.P.C., the existence of a
previous case is a requirement under Section 110 of Cr.P.C.
So, in that case, the power of the Deputy Commissioner of
Police was questioned. Whether he was a competent person to
initiate the proceedings was under discussion.
19. Now going back to the aforesaid M.Krishnamurthy's
judgment. 4 questions were formed and the same has been
extracted hereunder:-
"(a) Is a previous incident a sine qua non for
initiating Section 107 Cr.P.C. proceedings?
(b) Can proceedings under Section 107 Cr.P.C. be initiated
even before an incident that is likely to disturb the peace or public
tranquillity takes place?
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(c) Should a show cause order issued under Section
107 Cr.P.C. reflect that the Magistrate has assessed the truth of the
information and the need for taking action?
(d) Can a show cause order under Section 107 Cr.P.C. be per
se subjected to judicial review?"
20. In the aforesaid Madhu Limaye's judgment, the
Hon'ble Division Bench has observed as under:-
"47. The gist of the Chapter is the prevention of crimes and
disturbances of public tranquillity and breaches of the peace. There
is no need to prove overt acts although if overt acts have taken
place they will have to be considered. The action being preventive is
not based on overt act but on the potential danger to be averted.
These provisions are thus essentially conceived in the interest of
public order in the sense defined by us. They are also in the interest
of the general public. If prevention of crimes, and breaches of peace
and disturbance of public tranquillity are directed to the
maintenance of the even tempo of community life, there can be no
doubt that they are in the interest of public order."
21. Regarding the 1st question, it has been answered
that previous incident is not a sine qua the breach of peace.
The likelihood of breach of peace is enough to initiate the
proceedings under Section 107 Cr.P.C
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22. Regarding the 2nd question, it has been answered
that the proceedings can be initiated even before the incident
that is likely to disturb the peace and tranquility takes place.
23. Regarding the 3rd question, it has been answered
that the subjective opinion at the stage of Section 107 of
Cr.P.C cannot be a matter for judicial review. So, all these
questions were answered to the effect that the truth of the
information can be tested only in the Enquiry under Section
116 of Cr.P.C.
24. Regarding the 4th question, it has been answered
that the order must contain substance of the information
received. The information is necessary for the noticee to
challenge the allegations. A 'substance' here means the
essence of the information that has been received by the
Magistrate from the police or otherwise. Since in the
conclusion paragraph, it has been observed that if preventive
action proceedings are not interfered at the threshold, there is
every likelihood of tempers cooling down during the
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proceedings before the Executive Magistrate. So the Courts
must be very slow in interfering with an order passed under
Section 111 of Cr.P.C. The Society is the ultimate sufferer, if
the order passed under Section 111 of Cr.P.C. is interfered
needlessly on the ground of protracting the individual rights.
We came to an end of discussion with regard to the
requirements of law. With this backdrop in my mind, now we
are going to the individual case on hand.”
5.The impugned notice is dated 07/08/2021. Perusal
of the impugned notice as noticed above shows that it is
a printed format and the gaps were filled up through pen.
This shows total lack of application of mind on the part
of the 1st respondent herein. It does not satisfy any of
the requirements as stated above. Since printed format
has been used, on the sole ground, it is liable to be
quashed and accordingly, it is quashed.
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6.In fine, this criminal original petition is
allowed. Consequently, connected Miscellaneous Petition
is closed.
31.01.2022
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present
lock down owing to
COVID-19 pandemic, a web
copy of the order may be
utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
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G.ILANGOVAN, J
er
Crl.OP(MD)No.16960 of 2021
31.01.2022
https://www.mhc.tn.gov.in/judis
