Madras High Court
Sentilnathan vs The Sub Divisional Executive ... on 31 January, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 31.01.2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.16917 of 2021
and
Crl.MP(MD)Nos.9156 and 9157 of 2021
1.Sentilnathan
2.Sivabalan
3.Peri Senthilnathan
4.Kalimuthu
5.Anandhan
6.Kasilingam
7.Subramanian
8.Saravanan
9.Kaalairajan
10.Panneerselvam
11.Sundaram
12.Ramakirushnan : Petitioners/'B' party
Vs.
1.The Sub Divisional Executive Magistrate
and Revenue Divisional Officer,
Devakottai Sub Division,
Devakottai,
Sivagangai District.
2.The Inspector of Police,
Aaravayal Police Station,
Sivagangai District. : Respondents
Prayer: Criminal Original Petition is filed under
Section 482 of the Criminal Procedure Code, to quash the
MC No.60/2021/B1/(7120/2021), dated 12.10.2021 pending on
the file of the learned Sub Divisional Magistrate and
Revenue Divisional Officer, Devakottai Sub Division.
https://www.mhc.tn.gov.in/judis
2
For Petitioners : Mr.G.Thalaimutharasu
For Respondents : Mr.RMS.Sethuraman
Additional Public Prosecutor
O R D E R
This petition has been filed by the petitioner seeking quashment of the order passed in MC No. 60/2021/B1/(7120/2021), dated 12.10.2021 by the 1st respondent.
2.The case of the petitioner in brief:- The 1st respondent has initiated proceedings in MC No.60 of 2021/B1/(7120/2021), dated 12.10.2021 on the basis of the complaint given by one Mrugan, s/o.Athmanathan and his group of people taken the Vinayagar Statute at Arasamaraththu Pillaiyar Koil, Kandadevi Village and the same was kept in his custody. So the petitioner made complaint against the above said Murugan and others. Based upon the above said complaint, this petitioner as well as the rival group have been arrayed as A and B party and notices have been issued and they were asked to appear before the 2nd respondent. The 2nd respondent https://www.mhc.tn.gov.in/judis 3 registered FIR in Crime No.105 of 2021 for the offences under sections 147, 294(b), 323 and 506(i) IPC and another case in Crime No.106 of 2021 for the same offences against 'A' party. On 25/09/2021 also another occurrence, took place between two groups in respect of which, cases in Crime Nos.109 and 110 of 2021 have been registered against both the parties. So apprehending breach of peace, on the basis of the recommendation made by the 2nd respondent, MC No.60/2021/B1 (7120/2021), dated 12/10/2021 has been initiated and they have been called upon to appear before the 2nd respondent police to attend the enquiry. Challenging the above said notice and proceedings, this petition has been filed mainly on the ground that proper procedure has not been followed before initiating the proceedings. This court in a batch of criminal original petitions in Crl.OP(MD)No.21560 of 2018 has observed like this. 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 https://www.mhc.tn.gov.in/judis 4 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 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 https://www.mhc.tn.gov.in/judis 5 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.”
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 https://www.mhc.tn.gov.in/judis 6 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 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, https://www.mhc.tn.gov.in/judis 7 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.
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 https://www.mhc.tn.gov.in/judis 8 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 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 https://www.mhc.tn.gov.in/judis 9 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 10 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 https://www.mhc.tn.gov.in/judis 11 accompany the material that has been mentioned by the Hon'ble Full Bench of the Bombay High Court.
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. https://www.mhc.tn.gov.in/judis 12 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 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. https://www.mhc.tn.gov.in/judis 13 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:-
"(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 https://www.mhc.tn.gov.in/judis 14 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
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 https://www.mhc.tn.gov.in/judis 15 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 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.” https://www.mhc.tn.gov.in/judis 16
3.Reading of the above said observation in conjunction with the impugned notice, it is seen that arraying rival groups as A and B party is not permissible under law. But reading of the notice shows that both the rival groups have arrayed as A and B party and satisfaction of the information has not been stated in the notice. It has been simply stated that both the parties involved in trouble and fighting even before the police station. Only on the above said incident, cases have been registered against both the parties. But reading of the entire documents shows that trouble exists between two groups in taking of the Vinayagar statute and keeping in custody of the Vinayakar idol. So naturally this will create problem between two groups in the village also. So apprehending breach of peace cannot be ruled out. But at the same time, as mentioned earlier, excepting simultaneous cases against both the parties by arraying them is not permissible under law. On the sole ground, the impugned proceeding is liable to be quashed and accordingly, the same stands quashed. However, liberty is granted to the 1st respondent to initiate the proceedings by satisfying the requirements of law, if still the breach of peace is apprehended, and exists. https://www.mhc.tn.gov.in/judis 17
4.With the above direction, this criminal original petition stands allowed. Consequently, connected Miscellaneous Petitions are closed.
31.01.2022 Index:Yes/No Internet:Yes/No er 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 18 G.ILANGOVAN, J er Crl.OP(MD)No.16917 of 2021 31.01.2022 https://www.mhc.tn.gov.in/judis