Telangana High Court
Theodore Reginald vs The State Of Telangana on 17 March, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HONORABLE SMT JUSTICE LALITHA KANNEGANTI
W.P.No.13900 of 2022
ORDER
This writ petition is filed questioning the action of respondent No.3 in issuing summons dated 25.02.2022 under Section 113 of Cr.P.C., against the petitioners, as illegal, arbitrary and in violation of principles of natural justice.
2. Heard learned Senior Counsel for the petitioners Mr. D.V.Seetharama Murthy, representing the learned counsel for the petitioners Mr. S. Chandraiah and learned Assistant Government Pleader for Home appearing for respondent Nos.1 to 3.
3. Learned Senior Counsel for the petitioners submits that petitioner Nos.1 to 3 are trustees of the Indigenous Churches of India Trust located at Hebron, Golconda Cross Roads, Musheerabad, Hyderabad, and petitioner No.1 is Chairman, petitioner No.2 is Vice- Chairman, petitioner No.3 is Executive Member, petitioner No.4 is Paster and petitioner No.5 is devotee of the said Church. He submits that earlier, respondent No.4 has filed a suit in O.S.No.999 of 2014 on the file of XXI Additional Chief Judge, City Civil Court, claiming to be authorised person of the Society of Trustees of Indigenous Churches in India, for grant of permanent injunction restraining the defendants and their men, agents and persons claiming through them from ever interfering with the possession and enjoyment as well as activities of 2 LK, J W.P.No.13900 of 2022 the Society. He submits that respondent No. 4 is a rowdy sheeter and there are several criminal cases pending against him and when the police have not taken any action, the Indigenous Churches in India Trust have filed W.P.No.7387 of 2022 and the same is pending. Learned Senior Counsel submits that the petitioners have approached this Court impugning the summons issued by respondent No.3- Additional District Magistrate-cum-Commissioner of Police, Hyderabad City, under Section 113 Cr.P.C., whereby the petitioners were directed to appear in person before the Office of respondent No.3 on 19.03.2022 at 10.00 am to show cause as to why they should not be required to enter into a bond for Rs.2,00,000/- and also to give surety by the bond of one surety in the like sum, that they will keep the peace for the term of one year. Learned Senior Counsel further submits that the impugned summons are bad for the reason that Section 107 Cr.P.C. prescribes the procedure for taking action against any person when such person is likely to commit a breach of the peace or disturb the public tranquillity by issuing a show cause notice. He submits that Section 111 Cr.P.C., mandates that while acting as Magistrate under Section 107, section 108, Section 109 or Section 110, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force. Learned Senior Counsel has relied on the judgment of the Honourable Apex Court in Madhu Limaye and others v. Sub-
3 LK, J W.P.No.13900 of 2022 Divisional Magistrate, Monghyr and others1; and also the judgment of Andhra Pradesh High Court in Nimmagadda Ravi and others v. State of Andhra Pradesh2. Learned Senior Counsel further submits that in Madhu Limaye's case (supra), the Honourable Apex Court has categorically held as under;
"the Magistrate acting under Section 107 shall make an order in writing setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. 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 that 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"
Learned Senior Counsel submits that a bare perusal of the order impugned does not state that what information has been received by the Magistrate and which made him to issue summons under Section 113 Cr.P.C., and in view of the law laid down by the Apex Court, summons, which is purported to be issued under Section 113 Cr.P.C., has to be set aside as it failed to follow the law laid down by the Apex Court as well as the provisions under the Code of Criminal Procedure. 1 1970(3) SCC 746 2 1978 (2) ALT 432 4 LK, J W.P.No.13900 of 2022
4. On the other hand, learned Assistant Government Pleader submits that basing on the information received from the Station House Officer that there is every likelihood that the breach of peace may occur in the locality, the Magistrate has issued these summons. He submits that summons need not contain the entire substance of the information that is received by the Magistrate. He further submits that in the summons, it is categorically mentioned that information has been received from the Station House Officer, Chikkadpally Police Station vide report under Section 107 Cr.P.C., and he also specified the bonds to be executed. He further submits that several criminal cases are pending against the petitioners and certain writ petitions are also pending before this Court and in view of these activities and basing on the information furnished by the Station House Officer, the impugned summons were issued immediately. Learned Assistant Government Pleader also submits that there is clear compliance of the procedure under Sections 111 and 113 Cr.P.C., which does not warrant interference by this Court under Article 226 of the Constitution.
5. Having heard the learned Senior Counsel for the petitioners and learned Assistant Government Pleader, perused the record. It is appropriate to look at Section 107 Cr.P.C., which reads thus;
"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 of disturb the public tranquillity 5 LK, J W.P.No.13900 of 2022 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".
Section 111 Cr.P.C.reads thus;
"111. Order to be made.
When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth 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 sureties (if any) required. Section 113 Cr.P.C., reads thus;
113. Summons or warrant in case of person not so present.
If such person is not present in Court, the Magistrate shall issue in a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court: Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot
6 LK, J W.P.No.13900 of 2022 be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest ."
A bare reading of Section 107 Cr.P.C., makes it clear that before issuing notice under Section 113 Cr.P.C., there should be order set forth. Under Section 111 Cr.P.C., when the Magistrate is acting under Sections 107, 108 and 109 Cr.PC., he shall make an order in writing setting forth the substance of the information received, amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required. In this case, except setting forth the surety amount, no order in writing is made i.e, what the substance of the information that is received by him from the Station House Officer. Unless and until such information is furnished to the person whom the notice is given under Section 113 Cr.P.C., he will not be in a position to respond to the show cause notice and appear before the authorities and by virtue of the proceedings issued by the Commissioner, it has become mere ritual and the purport of the provision itself is defeated. In the light of the order passed by the Apex Court in Madhu Limaye's case (supra), the impugned summons needs to be set aside as it has failed to follow the procedure under Section 111 Cr.P.C. Accordingly, impugned summons dated 25.02.2022 is set aside. However, it is left open to the respondents to initiate proceedings in accordance with law.
7 LK, J W.P.No.13900 of 2022
6. Accordingly, the Writ Petition is allowed. There shall be no order as to costs.
7. Miscellaneous petitions, if any pending in this writ petition shall stand closed.
____________________________ SMT LALITHA KANNEGANTI, J 17th March, 2022.
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