Madras High Court
C. Chinnusamy vs The Sub-Divisional Executive ... on 23 August, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.1274 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1274 of 2015
and
M.P.No.1 of 2015
1.C. Chinnusamy
2.Muthusamy
3.Subramani
4.Prakash
5.Kandasamy
6.Durai @ Venkatachalam
7.Ramasamy
8.Sakthivel ... Petitioners
Vs.
1.The Sub-Divisional Executive Magistrate /
Revenue Divisional Officer,
Tiruchengode,
Namakkal District.
2.The Inspector of Police,
Tiruchengode Rural Police Station,
Namakkal District.
Crime No.227 of 2015 ... Respondents
Prayer: Criminal Revision Case is filed under Section 397 and 401 of
Criminal Procedure Code, to call for the records pertaining to the order in
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1274 of 2015
M.C.No.03/2015/C dated 16.11.2015 passed by the 1st respondent and set
aside the same.
For Petitioners : Mr. N. Manokaran
For Respondents : Mr. N.S. Suganthan,
Government Advocate (Crl.Side)
ORDER
This revision petition is filed challenging the order passed by the Executive Magistrate under Section 116(3) Cr.P.C., directing the petitioners herein to execute a bond to keep public peace and tranquillity and in case of breach, to pay a sum of Rs.10,000/.
2. The petitioners herein challenges the above proceedings on the ground that there is a civil dispute pending between 'A' party and 'B' party. While so, pursuant to FIR, registered in Crime No.227 of 2015 dated 10.05.2015 under Section 107 Cr.P.C., notice was issued to both the parties on 14.05.2015, to participate in the enquiry initiated under Section 111 of Cr.P.C. The petitioners gave their written representation on 31.08.2015. 2/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 Thereafter, on 16.11.2015 Executive Magistrate had passed the impugned order which is beyond six months period from the date of initiating the proceedings and therefore, it is contravention to Section 116(6) of Cr.P.C.
3. Further, it is contended that to invoke powers under Chapter VIII of the Code, a single incident is not sufficient. The conclusion of the Executive Magistrate that he made direct and indirect enquiry and satisfied that there is a likelihood of disturbance to the public peace is not supported by any legal evidence. Without any objective assessment about the fact, the impugned order has been passed. Hence, it is liable to be quashed.
4. Learned Government Advocate(Crl.Side) submitted that alleging members of the 'B' party making attempt to form a road in the land owned by the petitioners herein who represent the 'A' party, there was serious law and order problem caused by these two groups. The Inspector, attached to Tiruchengode Rural Police Station, taking note of the disturbance to the public peace, registered FIR under Section 107 of Cr.P.C., in Crime No.227 of 2015 and requested the Executive Magistrate to 3/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 proceed against these two groups, which are causing disturbance to the public peace. Accordingly, on 14.05.2015, under M.C.3 of 2015, proceeding was initiated by the RDO, Executive Magistrate.
4(i). RDO issued the notice under Section 111 of Cr.P.C., directing the members of the 'A' party led by the petitioners herein to appear before him on 20.05.2015 at 3.00 pm. In the show cause notice, it is stated that why they should not be directed to execute bond for Rs.10,000/- as a security to maintain peace. The petitioners have not participated in the enquiry inspite of several opportunity. On 16.11.2015, having satisfied that deliberately the parties are not participating in the enquiry and not ready to execute a bond and through the enquiry conducted directly and discretely, he is satisfied that there is possibility of breach of peace, by invoking power under Section 116(3) of Cr.P.C., the petitioners were directed to execute a bond. There is no illegality or non application of mind in the said order. The delay in passing the order is purely due to attitude of the petitioners who did not participate in the enquiry.
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5. Learned Government Advocate(Crl.Side) submitted that the proceedings under 107 Cr.P.C., commenced on 13.05.2015, the impugned order was passed on 16.11.2015 since the actual commencement of proceedings commenced only on 20.05.2015, the date on which the parties were called upon to respond the notice. The impugned order was passed on 16.11.2015 which is well within a period of six months. The date of notice, which is 14.05.2015, cannot be considered as commencement of proceedings.
6. Learned counsel appearing for the petitioners would rely upon the judgments of this Court rendered in:
1) Somasundaram and 10 others Vs. The Revenue Divisional Officer, Dharapuram and another reported in 2002 (1) CTC 72, it is observed as follows:-
“6. An order passed under Section 111 of Cr.P.C. has to satisfy a double test: (1) It must set forth the substance of the information received as well as the amount of the bond to be executed, the terms of which it is 5/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 to be in force and the number, character and class of sureties (if any required). (2) Besides, the order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under Section 107 of Cr.P.C. for preservation of peace and order. In the present case, as already seen, the orders passed under Section 111 of Cr.P.C. do not set forth the substance of information received by the Sub-Divisional Magistrate and the nature of the case the petitioners have to meet before entering appearance. Lack of information in the show cause order had caused prejudice to the petitioners, since they were not in a position to challenge the same.”
2) 2011 (2) MWN (Cr.) 394 (G.Paramasivam and others Vs. The Sub-Divisonal Magistrate/Revenue Divisional Officer, Madurai and another, wherein, the judgment of Somasundaram case (cited supra) is relied upon and reiterated.
3) Also the judgment of this Court rendered in Jegan @ Billa Jegan Versus The Sub Divisional Magistrate & Sub Collector, Thoothukudi & Another reported in CDJ 2016 MHC 3383 wherein, this Court has observed as follows:-
“7. Under Section 107(1) Cr.P.C. the Executive 6/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 Magistrate were given power to act if they receive any information that it is a fit case that the person should be asked to execute bond to keep peace and good behaviour upto one year. A reading of Section 107(1) Cr.P.C. shows that the Executive Magistrate has enormous power. It is pertinent to note that no perform of the terms and conditions of the bond some time lead a person to jail. But it will be without a charge, without a trial. It is a dangerous power. It grants more power to Executive Magistrate. Section 107(1) acts as a check on their powers. Under Section 107(1) Cr.P.C. The Executive Magistrate must record his subjective satisfaction. Thus, he cannot pass oral orders under Section 107(1) Cr.P.C. He cannot simply pass orders according to his whims and fancies. He must give reason though not elaborately but briefly. Section 107(1) Cr.P.C. acts as a check on the arbitrary exercise of power.”
7. This Court, on considering the rival submissions and the judgments cited, on applying to the facts of the case, find that the case has been registered under Section 107 Cr.P.C., suo moto by the police on 10.05.2015. Section 107 Cr.P.C., reads as below:- 7/13
https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 “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 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 tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.” 8/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015
8. In the judgment cited, thought the learned single Judge of this Court has observed that FIR cannot be registered under 107 Cr.P.C., by the police. In my view, registration of FIR by Police under Section 107 Cr.P.C., cannot be held as illegal. If, per se any information is received by the Executive Magistrate, can be basis for proceeding under Section 107 Cr.P.C. Because the information emanated from the Police through the FIR registered the proceedings followed thereafter by RDO will not get vitiated.
The reason is, who is the informant is not a matter under 107 Cr.P.C. It is the person who receives the information alone a matter which has to be taken note. In other words, under Section 107 Cr.P.C., the information alone is material and not the source of information.
9. In this case, the reading of the show cause notice dated 14.05.2015, issued under Section 111 of Cr.P.C., indicates that the information received from the Tiruchengode Rural Police is considered under Section 107 Cr.P.C., and while acting under Section 107 Cr.P.C., show cause notice was issued to the 'A' party and 'B' party, calling upon 9/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 them why they should not be asked to execute bond. This notice dated 14.05.2015 has called upon the sparing parties to appear on 20.05.2015 at 3.00 pm. Regarding the time for completion of enquiry, Section 116(6) says:
“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.
10. The words 'Enquiry' and 'Commencement' used in sub Section are very relevant to answer the plea of limitation raised by the petitioners.
The date of show cause notice cannot be construed as commencement of enquiry. The commencement of enquiry is from the date on which the parties appear and put forth their case or on the date of which the parties are 10/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 expected to appear and put forth the case. If the date of show cause notice itself is to be taken as date of commencement of enquiry, in some cases, the parties may not cooperate for the enquiry or appear and delay the process or even the Executive Magistrate who has issued show cause notice due to some exigency may even drop the proceedings before the date of enquiry.
11. Furthermore, completion of enquiry within six months mentioned in 116(6) of Cr.P.C., is not mandatory without exemption. If the Act itself provides exemption to this rule, the Magistrate makes a special reason for not passing the order within six months from the commencement of enquiry.
12. In the light of the above facts and circumstances, considering the impugned order, this Court finds that the Executive Magistrate has specifically recorded that inspite of offering opportunity to both the parties, they have not submitted their final explanation and protracting the proceedings. Therefore, from his direct enquiry and discrete enquiry, he was satisfied that there is possibility of breach of public peace, likely to be 11/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 caused by these parties. The special reason for the delay is implicitly mentioned in the impugned order itself. Therefore, on looking from any angle, this Court finds no illegality in the order passed by the Executive Magistrate, to interfere. Hence, the Criminal Revision Case stands dismissed. Consequently, connected miscellaneous petition is closed.
23.08.2022 AT Index : Yes/No Speaking / Non-speaking To
1.The Sub-Divisional Executive Magistrate / Revenue Divisional Officer, Tiruchengode, Namakkal District.
2.The Inspector of Police, Tiruchengode Rural Police Station, Namakkal District.
3.The Public Prosecutor, High Court of Madras.
12/13 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1274 of 2015 Dr.G.JAYACHANDRAN,J.
AT Crl.R.C.No.1274 of 2015 and M.P.No.1 of 2015 23.08.2022 13/13 https://www.mhc.tn.gov.in/judis