Madras High Court
Aswathaman vs / on 8 May, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.12831 of 2024
& Crl.M.P.No.7860 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.06.2024 Pronounced on: 19.06.2024
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.12831 of 2024
& Crl.M.P.No.7860 of 2024
1. Aswathaman.
2. Ajith Raj.
3. Visalakshi.
4. Ragul.
5. Sigamani @ Thadi Sigamani.
6. Manog Kumar. .... Petitioners/B-Party
/versus/
1. The Sub-Divisional Magistrate &
Revenue Division Officer,
Chennai – 600 066.
2. The State Rep. by its
The Inspector of Police,
P-3, Police Station,
Vyasarpadi, Chennai – 39.
3. S.Charles. .... Defacto Complainant&A-Party/Respondents
Prayer:- Criminal Original Petition has been filed under Section 482 of
Cr.P.C., to call for the records in m 7/1583/2024 dated 08.05.2024 on the file
of the Sub Divisional Magistrate & Revenue Divisional Officer, North Division,
Chennai – 66.
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Page No.1/16
Crl.O.P.No.12831 of 2024
& Crl.M.P.No.7860 of 2024
For Petitioners : Mr.R.Sankarasubbu
For R1 & R2 : Mr.S.Udaya Kumar
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition is filed under Section 482 of
Cr.P.C., to quash the summon issued to the petitioners herein to participate in
the proposed enquiry initiated under Section 107 of Cr.P.C.
2. The prime contention of the petitioners is that the summon
suffers irregularity and bereft of particulars. The proceedings combining both
A-party and B-Party is contrary to the dictum laid down by the Hon'ble High
Court and therefore, the entire proceedings gets vitiated.
3. The respondent police has registered the case in Crime No.362
of 2023 for the alleged offence under Section 387 & 506(1) of I.P.C. The Sub
Divisional Magistrate has intended to initiate proceedings under Section 107 of
Cr.P.C., which is unjust, since the alleged offence could not attract breach of
peace.
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4. Further, the Learned Counsel for the petitioners also submitted
that the entire proceedings were motivated with malice and excessive exercise of
power conferred to the Sub Divisional Magistrate.
5. The Learned Counsel for the petitioners rely upon the following
judgments:-
(i). K.V.Shanmugam -vs- State reported in 1978 LW (Crl) 130.
(ii). Ayyavoo Chettiar and others -vs- The Inspector of Police,
Ennore Circle, Ennore, Kuppuraj and others reported in 1984 L.W.(Crl) 112
and submitted that twin test not been satisfied in the present case.
6. Per contra, the Learned Government Advocate (Crl.Side) for the
respondents 1 & 2 submitted that in connection with Crime No.362 of 2023
registered under Section 387 & 506(1) of I.P.C., there is still dispute between
the parties causing threat to public peace. Therefore, the Inspector of Police
attached to P-3, Vyasarpadi, Police Station had requested the Sub Divisional
Magistrate to conduct enquiry under Section 107 of Cr.P.C., for further
proceedings. Therefore, the impugned summon was issued to the petitioners
herein who are the members of A-Party and they were asked to appear before
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the Sub Divisional Magistrate on 21.05.2024 at 2.00 p.m. Whereas, the
members of the B-Party were summoned to appear and participate in the
enquiry in the morning at 10.00 a.m. Therefore, on the face of the summons
issued it could be seen that the proceedings is not a combined proceedings for
both the parties. Further, there is specific reference to the case pending against
them and the consequential dispute between two groups been going unabated
and therefore, it cannot be termed as summon without material facts to interfere.
The petitioners, instead of participating in the enquiry had intentionally
approached this Court to stall the lawful enquiry initiated against these
petitioners.
7. The Learned Government Advocate (Crl.Side) appearing for the
respondents 1 & 2 submits that the twin test laid down by the High Court had
been scrupulously following in the case in hand.
8. Heard the Learned Counsel for the petitioners and the Learned
Government Advocate (Crl.Side) for the respondents 1 & 2.
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9. The Learned Counsel for the petitioners heavily harp on the
point that for a single crime, the Executive Magistrate cannot exercise his power
conferred under Chapter VIII of Cr.P.C and further, when the notice does not
satisfy the twin conditions, namely, material details relating to the incident and
satisfaction of the magistrate that a situation calls for issuing of show cause
notice and further, clubbing of both A & B parties together who are members of
hostile group, through a common proceedings under Section 107 of Cr.P.C.,
cannot sustain.
Section 107 of Cr.P.C., reads as below:-
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 tranquillity or to do
any wrongful act that may probably occasion a breach
of the peace or disturb the public tranquillity 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
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Magistrate thinks fit.
(2). Proceeding 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 tranquillity
or to do any wrongful act as aforesaid beyond such
jurisdiction.
10. The impugned summon discloses the case pending against
these petitioners and the parties to the proceedings who fall under A & B party.
Based on the request made by the Inspector of Police, the Executive Magistrate
has proceeded to issue notice. There is specific reasons stated in the notice that
members of the both parties are frequently quarrelling with each other. The
case against the petitioner is in connection with extortion, putting a person in
fear of death or of grievance hurt. The frequent quarrel among two groups had
caused disturbance to the public peace. Therefore, the jurisdictional Police had
requested the Executive Magistrate to initiate proceedings under Section 107 of
Cr.P.C.
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11. The judgments relied by the Learned Counsel for the
petitioners emphasis how the Magistrate to act while exercising his Magisterial
power.
12. For better clarity, relevant portion of the judgments are
extracted below:-
(i). K.V.Shanmugam -vs- State reported in 1978 LW (Crl) 130.
4. For viewing the controversy in the proper
perspective, a brief reference to the relevant provisions
in the Code of Criminal Procedure is called for S. 107 is
the relevant provision in the Code which empowers a
Magistrate to take action against a person or persons
against whom information is laid about his or their
likelihood of committing breach of peace or disturbance
of public tranquility. On receipt of information the
Magistrate has to issue an order under S. 111 of the
Code. S. 112 prescribes the procedure to be followed in
respect of persons present in Court against whom
information has been laid for action being taken under
S. 107 or S. 108 or S. 109 or S. 110. S.113 empowers the
Magistrate to issue a summons or warrant against a
person whose presence is required in Court and the
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Proviso to that Section confers powers on a Magistrate
to pass ex parte orders in cases of urgency. S. 114 lays
down that whenever a summons or warrant is issued
against a person or persons under S. 113 of the Code the
summons or warrant should be accompanied by a copy
of the order under S. 111 and the copy of the order
should be served on the person or persons concerned.
After the several formalities have been complied with,
the Magistrate has to enquire into the truth of the
information under S. 116 of the Code. Lastly, S. 117
provides that if the Magistrate is satisfied about the truth
of the information laid against a person or persons, he
may pass an order directing the counter-petitioner or
counter-petitioners to give security for keeping the peace
or for maintaining good behaviour as the case may be. If
the security ordered for, is not given, the Magistrate has
to act under S. 122 of the Code and commit the counter-
petitioner or counter-petitioners to prison for the
duration stipulated for keeping the peace.
5. A study of the several Sections clearly shows
that as soon as information is laid before a Magistrate,
he has to exercise his Magisterial powers and take
action against the person or persons against whom
information has been laid. Such action, commencing
from the issuing of an order under S. 111 and
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culminating in the passing of an order to furnish security
under S. 117 or an order of discharge under S. 118, has
to be performed in the manner laid down by the Code,
because the Magistrate exercises at each stage his
Magisterial powers under the Code. When the matter is
viewed in that perspective, it will be clear that a notice
issued under S. 111 has to satisfy a double test. The first
is that the notice must furnish all the information which
is laid against a person or persons and secondly, before
issuing a notice, the Magistrate has to satisfy himself
that the situation calls for the issuing of a show cause
order. As regards the first requirement, the words in Sill
contain the direction of the Legislature the Magistrate.
The words are as given below:
...he shall make an order in writing, setting forth
the substance of the information received....
6. No doubt, S. 112 stipulates that when a person
in respect of whom an order is made is present in Court,
the order shall be read over to him or if he so desires,
the substance thereof shall be explained to him. But, this
does not mean that the initial notice or order need not
contain the substance of the information. What has to be
read over or explained to a person under S. 112 can
only be the contents of an order under S. 111 and not
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something which is not incorporated in the said order.
That the Legislature has not provided for two kinds of
orders, viz., a bare or formal order under S. 111 and a
detailed and comprehensive order under S. 112, can be
seen from the wording of S. 116 which is in the following
terms:
When an order under S. 111 has been read or
explained under S. 112....
7. A conspectus of the several Sections makes it
abundantly clear that even at the outset a comprehensive
order has do be passed and that order should contain all
the details of the information laid against a person or
persons. The reason for the Legislature having given
such a direction is not far off to see. Anyone, who is
directed by an order under S. 111 to appear in Court
and show cause why proceedings should not be taken
against him, should know what is the information laid
against him and what sort of repudiation he should
make. Burn, J. laid down in Bahadur Patnaik v. Emperor
1933 M.W.N. 137 that a mere reference to a police
report in a preliminary order under S. 112, Crl.P.C. will
not be sufficient compliance with the direction of the
Legislature and the Magistrate should extract and state
plainly in the order the facts which, in his opinion,
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would, if established by evidence, necessitate the asking
of security from the counter-petitioner. King, J. went a
step further and held in Santhanaramaswami v. Emperor
1937 M.W.N. 189 that an order under S. 112 , Crl.P.C.
should not only contain the substance of the information
laid against a counter-petitioner, but even details such
as time, place and the identity of the persons alleged to
have been threatened should also be given. In the instant
case, the show cause order issued by the Magistrate
does not contain the substance of the information laid
against the counter-petitioners, nor details relating to
time, place, persons affected, etc. On this ground, the
show cause order issued by the Magistrate has to be
struck down as a defective one.
(ii). Ayyavoo Chettiar and others -vs- The
Inspector of Police, Ennore Circle, Ennore,
Kuppuraj and others.
5. A perusal of this order shows that the
Magistrate has not given any material details relating to
the incidents which led the Inspector of Police, Ennore,
to lay the information under Section 107, Code of
Criminal Procedure In Thirumalaiappa Gounder alias
C. Chinnaswamy and others In Re : 1981 L.W. (Crl.)
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106. I have pointed out that a notice under Section 111
of the Code of Criminal Procedure, has to satisfy a
double test. The first is that the notice must furnish all
the information which is laid against a person or
persons, and the second is, before issuing a notice, the
Magistrate has to satisfy himself that the situation calls
for issuing of a show cause order. There is nothing in the
preliminary order to indicate that the Magistrate has
made an objective assessment about the truth and
urgency of the information laid before him. Merely
mentioning or extracting the relevant section of the Code
of Criminal Procedure is not sufficient. The order does
not contain any information which is likely to cause
breach of peace. No instance has been mentioned.
Therefore, the first contention is well founded.
6. In this proceeding both the A and B Parties are
clubbed together. They are members of hostile groups.
This Court-in Sadayan and Ors. v. Paramasivam and
Ors. : 1983 L.W. (Crl.) 218 has taken the view that two
opposing parties to a proceeding under Section 107 of
the Code of Criminal Procedure, cannot be proceeded
against and bound over in one and the same proceeding.
The same view is expressed in K.P. Murugesan and 9
others v. State by Inspector of Police, Keeranur, Palani
Taluk, and Ors: 1983 L.W. (Crl.) 251. The order is,
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therefore, clearly vitiated and has to be quashed on this
ground also.
13. The impugned summons is the beginning of enquiry, on receipt
of information about the likelihood of committing breach of peace or
disturbance to public tranquillity. The summon is not issued under Section 111
of Cr.P.C. It is the stage prior to the issuance of notice under Section 111 of
Cr.P.C. The Executive Magistrate has issued the impugned notice to satisfy
himself whether the situation calls for the issuing of show cause order.
Therefore, what is required in a notice issued under Section 111 of Cr.P.C.,
shall not necessarily be incorporated in the pre-enquiry stage. What could be
understood from the summons impugned is that it is prior notice to conduct a
preliminary enquiry among the parties in connection with the recommendation
given by the Inspector of Police to satisfy whether to proceed under Section 107
of Cr.P.C. Therefore, it is clarified that the impugned notice since not issued
under Section 111 of Cr.P.C., and it contain necessary information for the
parties to participate in the enquiry, the judgments cited above are not
applicable at this stage. Further, as clarified by the Learned Government
Advocate (Crl.Side), there is no clubbing of parties together in the proceedings.
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The parties are called to participate in the preliminary enquiry at different time.
14. The Learned Government Advocate (Crl.Side) for the
respondent ensures that if the Magistrate intends to proceed further after this
preliminary enquiry, the proceedings against the parties will be separate and
will not be clubbed together. It is also clarified that after this preliminary
enquiry if the magistrate is satisfied, he shall proceed in accordance with
guidelines issued by this Court in K.V.Shanmugam -vs- State and the judgment
rendered by Division Bench in P.Sathish @ Sathish Kumar v. State Rep. by,
The Inspector of Police Law & Order, H-4, Korukkupet Police Station,
Chennai – 600 021 and others.
15. Recording the said undertaking, this Criminal Original Petition
is disposed of. If the respondent police is intend to take action under Section
107 of Cr.P.C., same shall be done in accordance with law as clarified above.
16. Accordingly, this Criminal Original Petition is disposed of.
Consequently, connected Miscellaneous Petition is closed.
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19.06.2024
Index :Yes/No.
Internet :Yes/No.
Speaking Order/Non-speaking order
bsm
Copy to:-
1. The Sub-Divisional Magistrate & Revenue Division Officer,
Chennai – 600 066.
2. The Inspector of Police, P-3, Police Station, Vyasarpadi, Chennai – 39.
3. The Public Prosecutor, High Court, Madras.
Dr.G.JAYACHANDRAN, J.
bsm
Pre-delivery order made in
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19.06.2024
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