Madras High Court
Radhakrishnan vs The Executive ... on 15 September, 2021
Author: G.Ilangovan
Bench: G.Ilangovan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 15.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD) No13544 of 2021
and
Crl.MP(MD)Nos.7041 and 7042 of 2021
Radhakrishnan : Petitioner/A10
Vs.
1.The Executive Magistrate-cum-Tahsildar,
Ottanchathiram Taluk,
Dindigul District.
2.The Inspector of Police,
Ottanchathiram Police Station,
Dindigul District.
(Crime No.219 of 2021) : Respondents
PRAYER:Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records pertaining to the impugned proceedings in
MC No.975/2021/C3, dated 27.08.2021 on the file of the 1st respondent
and quash the same.
For Petitioners : Mr.V.Kathirvelu
Senior Counsel
for Mr.K.Prabhu
For Respondents : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis
1/16
COMMON ORDER
This petition is filed seeking quashment of the proceedings initiated under Sections 107 and 110 of Cr.P.C. against these petitioner.
2. In a batch of Criminal Original Petitions in Crl.O.P.(MD) Nos. 21560 of 2018 and batch, a common question of law and fact arose. The discussion in the aforesaid batch of Criminal Original Petition runs like this.
“4.... Way back in 1980, the Hon'ble Supreme Court in the judgment reported in AIR 1981 SC 674 (Gopalanachari Vs. State of Kerala), has observed the ill-effect of Section 110 Cr.P.C. Paragraph No.5 of the said judgment is extracted hereunder:-
“A closer look at Section 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case. Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under Section 110 were prevented from pervasive misuse by zealous judicial vigilance and interpretative strictness, many a poor man, maybe cast into prison by sticking the label of 'habitual' or by using such frightening expressions as 'desperate', 'dangerous' and 'hazardous to the community'. Law is what the law does, even as freedom is what freedom does. Going by that https://www.mhc.tn.gov.in/judis 2/16 test, Section 110 cannot be permitted in our free Republic to pick up the homeless and the have-nots as it did when under British subjection because to-day to be poor is not a crime in this country. George Bernard Shaw, though ignorant of 110, did sardonically comment that "the greatest of evils and the worst of crimes is poverty".
5. After analyzing the provisions in the light of Article 21 of the Constitution of India, the Hon'ble Supreme Court in the concluding paragraph has observed as under:-
“Let us allay misunderstandings. We are clear in our mind that prevention is better than cure, in criminal law as in medicines, especially when there is judicial supervision. Society cannot be left at the mercy of predators and bandits who, like wild beasts, prey upon the weak and the innocent and become a menace to peace and security of society. But liberty is a prized value and that is why we have insisted not merely upon the Police having to be careful before marching poor people into court under Section 110 but the Court itself having to be gravely concerned about using preventive provisions against helpless persons, not on formal testimony readily produced to order as we have noticed in a recent case,[Prem Chand Vs. Union of India, Writ Petition No.3050 of 1980 decided on 11.11.1980, MANU/SC/0191/1980:1981 CriL J5 (SC)] but on convincing testimony of clear and present danger to society.” https://www.mhc.tn.gov.in/judis 3/16
6. So, with this cautious note struck by the Hon'ble Supreme Court way back in 1980, while approaching the matter under dispute, we will go to the second judgment with regard to the consequences of dropping of proceedings or execution of the bond for a particular period. The Hon'ble Supreme Court in the case of Ram Narain Singh and others Vs. State of Bihar reported in AIR 1972 SC 2225, in paragraph No.6, has observed like this.
“6.............We may at the outset state that we find it difficult to accede to the submission made by Mr. Singh that once the period for which bond was ordered to be executed has expired, the order becomes nugatory and the proceedings under section 107 of the Code of Criminal Procedure must be dropped. The proceedings under section 107 of the Code, in our opinion, can continue despite the fact that the period for which the bond was required to be executed has expired. To hold otherwise would lead to the result that the proceedings under the section would have, to be dropped if the person proceeded against succeeds in protecting the proceedings, even though the apprehension of breach of peace or disturbance of public tranquillity still persists. At, the same time, the court is not precluded from taking into account,, the subsequent events. If the material on record discloses that though there was a danger of breach of peace it one time, because, of the happening of a subsequent event the danger of breach of peace has disappeared, the court can drop the proceedings and discharge the person proceeded against. Even in the absence of some positive evidence of https://www.mhc.tn.gov.in/judis 4/16 reconciliation between the opposing parties, if the court finds that since, the date of incident complained of, a very long period has elapsed during the course of which nothing untoward has happened. the court may well draw the inference that the danger of breach of peace has vanished. ”
7. This judgment guides us further to the effect that if there is a long gap between the incident, that can be taken into account. Even if the period, for which, the bond has been executed, expired, the proceedings may not be dropped. So, subsequent events can be taken into account and simply because the bond was required to be expired, the proceedings need not be dropped.
8. Now, we will go to the Full Bench decision of the Bombay High Court in the case of Farhan Nasir Khan Vs. State of Maharashtra and others reported in 2020 (206) AIC 279.
9. The questions that has been referred to before the Hon’ble Full Bench are that i) whether before issuing the show cause notice under Section 111 of Cr.P.C., whether separate order must be passed by the Magistrate. https://www.mhc.tn.gov.in/judis 5/16
ii) Whether the aforesaid order must accompany the show cause notice issued under Section 111 of Cr.P.C.
iii) If the show cause notice, which is in writing and which sets forth (i) the substance of the information received,
(ii) amount of the bond, (iii) term for which it is to be in force,
(iv) number character and class sureties, if any, is required and (v) grounds for apprehending breach of peace or disturbance of public tranquility, whether a separate order must be passed.
10. The Hon'ble Full Bench after going through the entire evidence came to the conclusion that the Magistrate has to form an opinion in writing as contemplated by Section 111 of Cr.P.C. and thereafter, proceed to issue the show cause notice as contemplated by Section 107 of Cr.P.C. and along with the show cause notice, the opinion must be annexed. It can also be done in the notice itself by integrating all the aforesaid facts.
11. Further explaining purpose of the notice, it is observed that the noticee must known the factual matrix comprising either in the complaint or in the information https://www.mhc.tn.gov.in/judis 6/16 received and the reasons for the opinion of the Magistrate. So, according to the Hon'ble Full Bench decision, the purpose of the notice is to inform the noticee with regard to all relevant facts as stated above for the purpose of giving him a fair and full opportunity to put forth his explanation. So, this judgment of the Hon'ble Full Bench of Bombay High Court further guides as to the issue.
12. This position has been clarified in the famous case of the Hon’ble Supreme Court reported in AIR 1971 SC 2486 (Madhu Limaye Vs. S.D.M.Monghyr). In paragraph Nos.36 and 37 of the aforesaid judgment, it has been observed as under:-
“We have seen the provisions of Section 107. That section says that action is to be taken in the manner here-in-after provided and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasise the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the ,general public. In this very case the Apex Court went on to observe in Para 37 as under:-
https://www.mhc.tn.gov.in/judis 7/16 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 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.”
13. Way back in 1909, the very same Bombay High Court in a Full Bench decision reported in MANU/MH/0054/1909 (Suleman Adam Vs. Emperor) deals about the old provisions of the Code of Criminal Procedure. There is a specific provision to the effect that summons issued under Section 114 of Cr.P.C. must be accompanied by a copy of the order made under Section 112 of Cr.P.C. It appears that this mandatory requirement has been brought by way of a judicial order by the Hon'ble Bombay High Court in the Farhan Nasir Khan’s judgment (referred supra). Now, the position is very clear to the effect that the notice must accompany the material that has been mentioned by the Hon'ble Full Bench of the Bombay High Court. https://www.mhc.tn.gov.in/judis 8/16
14. With this backdrop in my mind, we will go to the judgment of our High Court.
15. Even though the judgment reported in MANU/TN/0706/2017 in the case of M.Krishnamurthy and others Vs. Sub Divisional Magistrate cum Revenue Divisional Officer and others is frequently quoted and followed, after the aforesaid case, a more comprehensive discussion has been made in Crl.R.C.No.78 of 2020 dated 25.09.2020. As I mentioned earlier, this is very comprehensive in nature.
16. The discussion starts from the colonial error cases, wherein, the proceedings were initiated against V.O.Chidambaram Pillai under Section 107 of Cr.P.C. Section 107 Cr.P.C. deals with the security for keeping the peace. Section 110 deals about the security for good behavior from habitual offenders.
17. A Full Bench Judgment of this Court in the case of Yeluchuri Venkatachennaya and others Vs. Emperor https://www.mhc.tn.gov.in/judis 9/16 reported in AIR 1920 Madras 337 would conclude that the proceedings under Section 107 Cr.P.C. is equal to trial proceedings. There is one legal assistance was also permitted. So that proposition of law was followed till date.
18. In AIR 1971 Ker 280 (FB) (Thekkittil Gopalankutti Nair Vs. Melepurath Sankunni Ezhuthaseah), it has been observed that proceedings under Sections 107 to 110, 133, 144, 145 and 488 of Cr.P.C. are the judicial proceedings in nature. It is further observed that the term 'breach of peace' requires subjective satisfaction as basis and insofar as the term 'good behavior' is concerned, it rests upon objectivity. So, except class (g) of Section 110 Cr.P.C., the existence of a previous case is a requirement under Section 110 of Cr.P.C. So, in that case, the power of the Deputy Commissioner of Police was questioned. Whether he was a competent person to initiate the proceedings was under discussion.
19. Now going back to the aforesaid M.Krishnamurthy's judgment. 4 questions were formed and the same has been extracted hereunder:-
https://www.mhc.tn.gov.in/judis 10/16 "(a) Is a previous incident a sine qua non for initiating Section 107 Cr.P.C. proceedings?
(b) Can proceedings under Section 107 Cr.P.C. be initiated even before an incident that is likely to disturb the peace or public tranquillity takes place?
(c) Should a show cause order issued under Section 107 Cr.P.C. reflect that the Magistrate has assessed the truth of the information and the need for taking action?
(d) Can a show cause order under Section 107 Cr.P.C. be per se subjected to judicial review?"
20. In the aforesaid Madhu Limaye's judgment, the Hon'ble Division Bench has observed as under:-
"47. The gist of the Chapter is the prevention of crimes and disturbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered. The action being preventive is not based on overt act but on the potential danger to be averted. These provisions are thus essentially conceived in the interest of public order in the sense defined by us. They are also in the interest of the general public. If prevention of crimes, and breaches of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life, there can be no doubt that they are in the interest of public order."
21. Regarding the 1st question, it has been answered that previous incident is not a sine qua the breach of peace. The likelihood of breach of peace is enough to initiate the proceedings under Section 107 Cr.P.C.
https://www.mhc.tn.gov.in/judis 11/16
22. Regarding the 2nd question, it has been answered that the proceedings can be initiated even before the incident that is likely to disturb the peace and tranquility takes place.
23. Regarding the 3rd question, it has been answered that the subjective opinion at the stage of Section 107 of Cr.P.C cannot be a matter for judicial review. So, all these questions were answered to the effect that the truth of the information can be tested only in the Enquiry under Section 116 of Cr.P.C.
24. Regarding the 4th question, it has been answered that the order must contain substance of the information received. The information is necessary for the noticee to challenge the allegations. A 'substance' here means the essence of the information that has been received by the Magistrate from the police or otherwise. Since in the conclusion paragraph, it has been observed that if preventive action proceedings are not interfered at the threshold, there is every likelihood of tempers cooling down during the proceedings before the Executive Magistrate. So the Courts https://www.mhc.tn.gov.in/judis 12/16 must be very slow in interfering with an order passed under Section 111 of Cr.P.C. The Society is the ultimate sufferer, if the order passed under Section 111 of Cr.P.C. is interfered needlessly on the ground of protracting the individual rights. We came to an end of discussion with regard to the requirements of law. With this backdrop in my mind, now we are going to the individual case on hand.”
3. In the light of the aforesaid observations, now we will take the present cases for discussion.
4.The petitioner has been implicated in Crime Nos.192, 10 and 985 of 2010 on the file of the 2 nd respondent police, upon which, the proceeding under Section 107 of Cr.P.C. has been initiated against him . The petitioners also executed a bond each for a sum of Rs.1,00,000/- before the 1st respondent. In the meantime, the 2nd respondent has reported a letter to the 1st respondent stating that violating the bond given by the petitioners on 10.03.2021, they involved another crime in Crime No.219 of 2021, which was registered for the offences punishable under Sections147, 148, 323, 294(b), 324 and 506(ii) of IPC @ 147, 148, 323, 294(b), 324, 506(ii) and 307 of IPC.
https://www.mhc.tn.gov.in/judis 13/16
5.Based upon the report filed by the 2nd respondent, summons have been issued in M.C.Nos.975/2021/C3 dated 09.08.2021 against the petitioners for giving explanation. It is the case of the petitioner that due to some election motive only, a false case has been registered against them. Counter case has also been registered against the defacto complainant and others in Crime No.229 of 2021. So, the notice impugned issued by the 1st respondent is not valid under law, since it does not satisfy the requirement of law under Section 107 of Cr.P.C.
6.The impugned notices are dated 27.08.2021, wherein, it has been stated that the petitioner along with others involved in the aforesaid criminal cases and also executed a bond on 05.03.2021 keeping a good behavior for a period of one year. Violating the aforesaid bond, he again involved in another criminal case. So, he was directed to explain for that.
7. Reading of the impugned notice shows that the substance of the information has not been properly stated and the subjective satisfaction on the part of the 1st respondent has been mentioned. https://www.mhc.tn.gov.in/judis 14/16
8.In view of the above, the impugned proceedings in MC No. 975/2021/C3, dated 27/08/2021 on the file of the 1st respondent is hereby set aside and accordingly, this petition is allowed. Consequently, connected Miscellaneous Petitions are closed.
Index : Yes/No 15 .09.2021
Internet : Yes/No
mm
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. https://www.mhc.tn.gov.in/judis 15/16 G.ILANGOVAN. J.
mm Crl.OP(MD) No.13544 of 2021 15/09/2021 https://www.mhc.tn.gov.in/judis 16/16