Karnataka High Court
Shri Ram S/O Shankar Chawan vs Taluka Executive Magistrate on 31 January, 2015
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31st DAY OF JANUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL REVISION PETITION No.200008/2015
Between:
1. Sri.Rama S/o Shanakar Chawan,
Age: 61 years, Occ:
R/o Nrupathunga Colony
Shahabazar Road,
Kalaburgi 585 102.
2. Shri.Sunder Chawan
S/o Shanker Chawan
Age: 59 years,
R/o Nrupathunga Colony
Shahabazar Road, Kalaburgi 585 102.
3. Shri.Ashok S/o Sunder Chawan
Age: 35 years, R/o Nrupathunga
Colony Shahabazar Road,
Kalaburgi 585 102.
4. Shri.Shivaji S/o Shanker Chawan,
Age: 57 years, R/o Nrupathunga
Colony, Shahabazar Road,
Kalaburgi 585 102.
5. Smt. Sharadha W/o Ram Chawan
Age: 58 years, R/o Nrupathunga
Colony, Shahabazar Road,
Kalaburgi 585 102.
... Petitioners
(By Sri. Santosh S.Nagarale Advocate)
2
And:
1. Taluka Executive Magistrate,
Gulbarga
Dist: Kalaburgi
2. University Police Station Gulbarga
Rep. By Sub- Inspector
Dist: Kalaburgi
3. Sri.Rajendra S/o Narayana Gayakwad
Age: 43 years, R/o Prashant Nagar (B)
Rajapur Kalaburgi.
4. Mohan Anand S/o Mareppa Sugandi
Age: about 41 years, R/o Rajapur
Kalaburgi Dist: Kalaburgi
5. Mallikarjun S/o Sidramappa Kanwarkar,
Aged: about 41 years, R/o Rajapur
Kalaburgi Dist: Kalaburgi.
6. Veeresh S/o Siddanna Tonta
Age: 23 years, R/o Sarvodhaya Nagar
Rajapur Dist: Kalaburgi.
Through Bhrampur Police Station ,
Represented by Addl. Public Prosecutor
High Court of Karnataka, Gulbarga
Bench, Gulbarga.
... Respondents
(By Sri. Maqbool Ahmed H.C.GP.)
This Criminal Revision Petition is filed under Section
397 R/w 401 of Cr.P.C. by the Advocate for the petitioners
praying that this Hon'ble Court may be pleased to quash the
entire proceedings in Crime No.309/2014 on the file of
Taluka Executive Magistrate, Kalaburgi initiated under
Sec.107 of Cr.P.C. in respect of petitioners in
3
No.Kram.KanDA.M.A./305/2014 dated: 09-12-2014 Vide
Annexure -K
This petition coming on for Orders this day, the Court
made the following:
ORDER
The present Revision Petition is preferred challenging the order passed by the Taluka Executive Magistrate Gulbarga in initiating proceedings U/Sec.107 of Cr.P.C. against the petitioners.
2. Heard the learned counsel for the petitioners and also learned H.C.G.P., who took notice for the respondents..
3. The learned Taluka Executive Magistrate has passed an order U/Sec.111 of Cr.P.C while initiating proceedings U/Sec.107 of Cr.P.C. The order discloses that the Sub- Inspector of Police, University Police Station, Kalaburgi submitted a report on 29-11-2014 making allegations that on 28-11-2014 there was group clash with regard to civil dispute and in that context both groups (noted in the order impugned) have damaged Budda Basava and Dr.Ambedkar photos at Rajapur extension area in Kalaburgi. In this 4 context, there was a criminal case registered against the culprits in Crime No.30/2014 for the offences punishable U/Sec.143, 147, 504, 295, 427, 506 R/w Sec.149 of Indian Penal Code. It is further alleged that there is a civil case pending before the Civil Court in Appeal No.127/2013 on the file of II Addl. Senior Civil Judge, Kalaburgi and also O.S.No.206/2013 pending on the file of V Addl. Civil Judge Kalaburgi. In this context , it is alleged that the first party and the second party as shown in the order sheet are making arrangements to fight against each other and they were wandering in the said area holding deadly weapons in their hands and there is every chance of fighting each other and therefore as a precautionary measure, he requested the Tahsildar to initiate proceedings U/Sec.107 of Cr.P.C. After receiving such information, the Taluka Executive Magistrate has passed the order in the following manner.
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4. On careful perusal of the above said order which is deemed to have been passed U/Sec.111 of Cr.P.C. in my opinion the said order is not in compliance with Sec.107 and 111 of Cr.P.C. In order to comply Sec.111 of Cr.P.C. the Magistrate after receiving the information should formulate a opinion that alleged person (or persons) is likely to commit breach of peace or disturb the public tranquility or to do any wrongful act, and that may disturb public tranquility and therefore he was of the opinion that there was sufficient ground for proceeding and then only he can issue show cause notice by way of passing an order U/Sec.111 of Cr.P.C. requiring such person to show cause as to why he should not be ordered to execute a bond for keeping peace 6 for such period not exceeding one year with or without sureties as the Magistrate thinks fit. But while passing order U/Sec.111 of Cr.P.C. the Magistrate should deem it necessary to require such person to show cause under the provision U/Sec.107 of Cr.P.C. and he shall make an order in writing containing 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 the sureties if required.
5. The above said two provisions are mandatory in nature if there is any violation of the mandatory provisions it virtually vitiates the entire proceedings. On plain reading of the above order passed by the Executive Magistrate, there is absolutely no satisfaction recorded by the Magistrate, that on the basis of the facts he came to the conclusion that there was an apprehension to breach of peace or public tranquility. It is only stated in the order sheet that the parties should execute a bond that they would not wander holding deadly weapons in their hands and fight against 7 each other, but there is no mention as to whether there was any apprehension of breach of peace or public tranquility.
6. Further added to the above the Magistrate, though mentioned the nature of the bond for a sum of Rs.25,000/- but he has not mentioned for how much time bond shall in force and whether any surety is required or not. Therefore the above said order cannot be said that it is in compliance with Sec.111 of Cr.P.C. Therefore I am of the opinion that there is no need for this Court to stay the proceeding and issue notice to the parties etc. When the order is illegal, further proceedings cannot be proceeded by the Executive Magistrate because the order falls to the ground at the inception. One more important aspect to be looked into is that the Magistrate cannot make both the parties as parties in a single proceeding. In this case both the group people have been made as first party and second party. Therefore on that ground also the proceeding is vitiated.
Under the above said circumstances, I am of the opinion that the order passed by the learned Magistrate is 8 illegal and the procedure followed is irregular, which cannot be cured. Therefore the order deserves to be set aside. Hence the following:
ORDER Revision petition is allowed. Consequently the order passed by the Taluka Executive Magistrate No.Kram.KanDA. M.A. /305/2014 Dated: 09-12- 2014 is hereby quashed.
Sd/-
JUDGE MWS