Madras High Court
Syed Ibrahim vs The Sub Divisional Magistrate And on 7 September, 2015
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.09.2015
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
Criminal Original Petition(MD) No.16231 of 2015
and
M.P.(MD) Nos.1 and 2 of 2015
1.Syed Ibrahim
2.Asrapdeen Firthoushy
3.Basheer Ahamed
4.Mohamed Thowfeeq
5.S.Abdul Basith
6.Abbas Manthiri
7.Sahul Hameed
8.Abthaheer
9.Asrab Ali
10.Nijamudeen
11.Seik Abdhul Kadar Jeylani
12.Abdul Nazeem
13.Abbas Manthiri
14.Sirajudeen
15.Hakkim
16.Abudul Hakkim
17.Yasar Arafath
18.Nazar Alikan
19.Nijamudeen
20.Abdul Kadar : Petitioners
Vs.
1.The Sub Divisional Magistrate and
Revenue Divisional Officer,
Uthamapalayam,
Theni District.
2.The Sub Inspector of Police,
Cumbum North Police Station,
Cumbum,
Theni District. : Respondents
Prayer: Criminal Original Petition is filed under Section 482 of Cr.P.C.,
praying to call for records relating to the impugned proceedings of the 1st
respondent in M.C.No.4 of 2015 dated 05.05.2015 and to quash the same.
!For Petitioner :Mr.K.Appadurai
For Respondent :Mr.K.Anbarasan, G.A.(Crl. side)
:O R D E R
The petitioner has come forward with this application to call for records relating to the impugned proceedings of the 1st respondent in M.C.No.4 of 2015 dated 05.05.2015 and to quash the same.
2.The learned counsel for the petitioner would submit that even though the summon was issued under Section 113 of Cr.P.C., it is an order under Section 107 of Cr.P.C and even in the order, the amount of sureties and nature of the offence has not been mentioned and hence, he prayed for quashing the proceedings.
3.The learned Government Advocate (criminal side) would submit that the impugned notice is not a final order passed under Section 107 of Cr.P.C. It is only summons, calling the petitioner for an enquiry and since, they have not appeared, no final order is passed and hence, he prayed for dismissal of the application.
4.I have considered the rival submissions made on either side and perused the materials available on record.
5.Perusal of the impugned order would show that it is only summons issued under Section 113 of Cr.P.C. It is appropriate to incorporate the impugned notice:
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6.Chapter VIII of Cr.P.C. deals with security for keeping the peace and for good behaviour. Section 107 of Cr.P.C. deal with security for keeping the peace in other cases. It is appropriate to incorporate Sections 107, 111, 112 and 113 of Cr.P.C.
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, 1*[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 jurisdictionor 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.
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.
112.Procedure in respect of person present in Court. - If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.
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 be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.
7.But, here, in the impugned order, it was stated that the case has been registered for an offence under Section 107 of Cr.P.C. on 13.04.2015, since there is possibility for law and order problem and hence, the petitioners are directed to appear before the first respondent on 21.05.2015 at about 04.00 p.m. Perusal of the impugned order would show that no final order has been passed. In Section 113 of Cr.P.C. it was stated that if such person is not present in Court, the Magistrate shall issue a summons requiring him to appear before him. It was specifically stated that whenever it appears to such Magistrate, upon the report of a police officer or upon other information that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.
8.But, in the present case, no warrant of arrest has been issued so far. Therefore, it is not necessary to give substance of information received, the amount of bond to be executed, the term for which it is to be force and the number, character and class of sureties if any required as per Section 111 of Cr.P.C. In such circumstances, I am of the view that since so far no order has been passed and only summons was issued for the presence of the petitioner, I do not find any reason to quash the proceedings and the application is liable to be dismissed.
9.Accordingly, this criminal original petition is dismissed.
Consequently, connected M.P.(MD) Nos.1 and 2 of 2015 are also dismissed.
To
1.The Sub Divisional Magistrate and Revenue Divisional Officer, Uthamapalayam, Theni District.
2.The Sub Inspector of Police, Cumbum North Police Station, Cumbum, Theni District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.