Madras High Court
Ravi vs Taluk Executive Magistrate/Tahsildar on 25 July, 2023
Author: D.Nagarjun
Bench: D.Nagarjun
Crl.O.P.(MD)No.11762 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.07.2023
CORAM
THE HON'BLE DR.JUSTICE D.NAGARJUN
Crl.O.P.(MD)No.11762 of 2023
and
Crl.M.P.(MD) No.9284 of 2023
Ravi ... Petitioner
Vs.
1. Taluk Executive Magistrate/Tahsildar,
Thiruvattaru Taluk,
Kanyakumari District.
2. The Inspector of Police,
Kulasekaram Police Station,
Kanyakumari District. ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, against the issuance of summon under Section
110 of the Code of Criminal Procedure in No.A3/MC 253 of 2023 dated
30.05.2023 served to the petitioner on 07.06.2023 without any material
and hence the same is to be quashed.
For Petitioner : Mr.Ananth C.Rajesh
For R1 & R2 : Mr.E.Antony Shaya Prabahar
Additional Public Prosecutor
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Crl.O.P.(MD)No.11762 of 2023
ORDER
This Criminal Original Petition is filed questioning the summons dated 30.05.2023 issued by the learned Taluk Executive Magistrate/first respondent asking the petitioner to execute a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties under Section 110 of Code of Criminal Procedure.
2. The petitioner has challenged the said notice issued under Section 110 of Cr.P.C., on the ground that there are no criminal cases against him and that substance of imputation has not been clearly mentioned in the summons.
3. In order to invoke Section 110 of Cr.P.C., the Executive Magistrate is expected to receive information that within the territorial jurisdiction of the concerned Executive Magistrate, the petitioner has been indulging in offences as enumerated from (a) to (g) under Section 110 of Cr.P.C., and thereby, the learned Executive Magistrate can order the petitioner to execute the bond with two sureties for a specific sum that he would maintain good behavior for a period of six months. 2/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023
4. The summons issued to the petitioner under Section 110 of Cr.P.C. discloses that the Inspector of Police/second respondent has informed the Executive Magistrate/first respondent that the petitioner has been indulging in criminal activities. Learned Executive Magistrate/first respondent must make out a case prior to ordering a notice that the petitioner is involved in any one of the offences mentioned in (a) to (g) of Section 110 of Cr.P.C. The concerned Executive Magistrate or the Inspector of Police has not mentioned in which crime pertaining to which police station the petitioner has allegedly committed the offence. There is no record to show that the petitioner is so desperate or dangerous as to render his being at large without security is hazardous to the society. Therefore, one of the ingredients or basic requirements to invoke Section 110 of Cr.P.C. are lacking.
5. Further, the Executive Magistrate/first respondent is also expected to invoke that the petitioner is a habitual offender. The Inspector of Police/second respondent must make out a case that the petitioner has been committing the offences one after the other. The 3/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023 petitioner has filed W.P.(MD) No.2178 of 2023 before this Court for deleting his name from the 'Rowdy List'. Learned Additional Public Prosecutor has reported before this Court in the said writ petition that the removal of the name will be considered in the next meeting thereafter. It is not clear as to whether the name of the petitioner has been deleted from the rowdy list.
6. Learned counsel for the petitioner has cited copy of the orders passed by this Court in Crl.O.P.(MD) No.9311 of 2023 dated 27.04.2023, this Court while confronting the similar situation has quashed the summons issued under Section 110 of Cr.P.C., relying upon the judgment of the Hon'ble Supreme Court of India in the case of Gopalanachari v. State of Kerala, reported in 1980 (Supp) SCC 649. The relevant paragraphs read as under:-
"The constitutional survival of Section 110 certainly depends on its obedience to Article 21, as this Court has expounded. Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of Article 21 unless read down to be as a fair and reasonable legislation with reverence for 4/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023 human rights. A glance at Section 110 shows that only a narrow signification can be attached to the words in clauses
(a) to (g), "by habit a robber....", "by habit a receiver of stolen property....", "habitually protects or harbours thieve....", "habitually commits or attempts to commit or abets the commission of .... ", "is so desperate and dangerous as to render his being at large without security hazardous to the community". These expressions, when they become part of the preventive chapter with potential for deprivation of a man's personal freedom upto a period of three years, must be scrutinised by the court closely and anxiously. The poor are picked up or brought up, habitual witnesses swear away their freedom and courts ritualistically commit them to prison and Article 21 is for them a freedom under total eclipse in practice.
Courts are guardians of human rights. The common man looks upon the trial court as the protector. The poor and the illiterate, who have hardly the capability to defend themselves, are nevertheless not 'non-persons', the trial judges must remember, This Court in Hoskot's case has laid down the law that a person in prison shall be given legal aid at the expense of the State by the court assigning counsel. In cases under 5/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023 Section 110 of the Code, the exercise is often an idle ritual deprived of reality although a man's liberty is at stake. We direct the trial magistrates to discharge their duties, when trying cases under Section 110 of the Code, with great responsibility and whenever the counter-petitioner is a prisoner give him the facility of being defended by counsel now that Article 21 has been reinforced by Article 39A. Otherwise the order to bind over will be bad and void. We have not the slightest doubt that expressions like "by habit", "habitual", "desperate", "dangerous", "hazardous" cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference - that by confirmed habit, which is second nature, the counter-petitioner . is sure to commit the offences mentioned if he is not kept captive. Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury. They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself 6/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023 dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in . the coils of Section 110 of the Code, although, we as court, cannot subscribe to any such proposition on mere assertion without copious substantiation. Even so, the court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality. After all, the judicial process must not fail functionally as the protector of personal liberty." The facts of the aforesaid case are similar to that of the facts of the present case on hand.
7. The impugned summons under Section 110 of Cr.P.C. have been issued by the Executive Magistrate/first respondent merely on the request made by the Inspector of Police/second respondent without going into the facts as to whether there are grounds for issuing such summons. 7/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023
8. Learned Additional Public Prosecutor has fairly conceded that there is no record placed before the learned Executive Magistrate by the Inspector of Police enabling the Executive Magistrate to issue the summons under Section 110 of Cr.P.C.
9. In view of the above, the summons dated 30.05.2023 issued by the Taluk Executive Magistrate/first respondent are without any basis and therefore, required to be quashed. Accordingly, this Criminal Original Petition is allowed and the summons issued by the Taluk Executive Magistrate/first respondent dated 30.05.2023 is quashed. Consequently, connected criminal miscellaneous petition is closed.
25.07.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
PKN
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Crl.O.P.(MD)No.11762 of 2023
To
1. Taluk Executive Magistrate/Tahsildar, Thiruvattaru Taluk, Kanyakumari District.
2. The Inspector of Police, Kulasekaram Police Station, Kanyakumari District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
9/10 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11762 of 2023 DR.D.NAGARJUN,J PKN Crl.O.P.(MD)No.11762 of 2023 Dated: 25.07.2023 10/10 https://www.mhc.tn.gov.in/judis