Madras High Court
Babu And Ors. vs Sub-Inspector Of Police on 11 March, 2005
Equivalent citations: 2005(2)CTC436
Author: S.R. Singharavelu
Bench: S.R. Singharavelu
ORDER S.R. Singharavelu, J.
1. This Criminal Original petition is to quash the order dated 24.12.2004 in M.C.No. 9 of 2004 R.C.6849/2004-A4 passed by the Executive Sub Divisional Magistrate and Sub-Collector, Ponneri, under Section 111 of the Code of Criminal Procedure, requiring the petitioners to show cause as to why they should not be ordered to execute a bond with sureties for their good behaviour for such a period not exceeding three years, the Magistrate thinks fit.
2. On a perusal or the records would reveal that by the proceedings dated 24.12.2004, in M.C.No. 9/2004 Rc.6849/2004/A4, the Executive Sub Divisional Magistrate and Sub-Collector, Ponneri, has issued the impugned show cause notice against the 79 individuals including a dead person by name Munusamy and this notice was issued pertaining to action under Section 110(e) and (g) of Cr.P.C.
3. It was contended in the notice that the petitioners live by the banks of the Kosasthalai river and are illegally mining sand from that river using their lorries/tractors/bullock-carts regularly despite resistance from the local villagers; in spite of constant vigil and regular action by officials of the Revenue Department, the petitioners continued to indulge in the said illegal activity punishable under the Mines and Minerals (Development and Regulation) Act, 1957; recently they started threatening all officials lower to the Tahsildar for reporting against them; the High Court of Judicature at Madras in the various proceedings directed the District Collector, Tiruvellore, the Revenue Divisional Officer, Ponneri and the Tahsildar, Ponneri to ensure the stoppage of illicit quarrying of sand from the Kosasthalai river; from the year 2000 onwards, officials were posted on turn duty, erected check posts and pillars, digging trenches, conducting surprise raids, in order to seize the vehicles, public announcements and personal warnings were also given to the individuals, including the petitioners; despite that, the petitioners continue their act of illicit sand mining; the officials and villagers have to go in huge groups for raids in order to avoid any risk at the hands of the petitioners. As situation was very grave the Tahsildar, Ponneri in his report dated 21.12.2004 had reported frequent breaches of peace caused by the dangerous daring and desperate behaviour of the petitioners and has recommended suitable action under Section 110(e) and (g) of Cr.P.C. The Sub-Inspector of Police Sholavaram has reaffirmed the same through his CSR No. 361/2004 and 364/2004 and charge-sheet No. 623/2004 dated 24,12.2004.
4. The impugned order also referred to 22 items including the F.I.R. proceedings of the District Collector, Tiruvellore, Revenue Divisional Officer, Ponneri, Tahsildar, Ponneri, Village Administrative Officer, Athur and also the observations made by the High Court of Judicature at Madras at various writ proceedings and contempt applications.
5. It is by all these collective informations the Sub-Collector, Ponneri, upon application of his mind to various information indicated in the references contained in his order, received by him had come to a conclusion that there was a valid case for issuance of show-cause notice to these petitioners.
6. The learned counsel for the petitioners has submitted that there is a flagrant violation of the procedures contemplated in the Code of Criminal Procedure, much less deviations made to the ingredients of Sections 110 and 111 of Cr.P.C.
7. Section 110 of Cr.P.C. deals with security for good behaviour from habitual offenders. It runs as follows:
"When an Executive Magistrate receives information that there is, within his local jurisdiction a person who -- (e) habitually commits, or attempts to commit, or abets the commission of offences, involving a breach of the peace, or (g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, nor exceeding three years, as the Magistrate thinks fit."
Section 111, Cr.P.C. indicates as to how an order is to be made. It runs as follows:
"When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any parson 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."
8. Learned counsel for the petitioners has submitted that there was no information as contemplated under Section 111 of Cr.P.C. indicating the habituality of the petitioners in commission of the offences mentioned in Sub-clause (e) and (g) of Section 110 of Cr.P.C.
9. In this connection some observations made in Gopalanachari v. State of Kerala, , was pointed out, that expressions like "by habit", "habitual", "desperate", "dangerous", "hazardous" cannot be flung in the face of a man proceeded against under Section 110 with laxity of semantics and that 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. The observation continues to go in the following lines:
"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 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."
10. By a reading or the above observation or the Honourable Supreme Court, "unless compulsive testimony carrying credence is abundantly available.", then there is nothing preventable to proceed against the accused under Section 110 of Cr.P.C. and in issuance of show cause notice thereunder. It is a question of fact varying from case to case as to the availability of compulsive testimony carrying credence.
11. Learned counsel for the petitioners relied on a citation D. Mumgesan and Ors. v. State, rep. by Inspector of Police (Crime), Nanguneri, In-charge Tisayanvilai, 1984 LW (Crl.) 283, wherein it was found that the information relied on in the impugned order does not contain all the necessary details regarding the date, place of occurrence and persons affected'. In that case surprisingly there was also an order against Vellayan, the 6th petitioner therein who was found dead even 5 years prior to the said order impugned in that case.
12. Learned counsel for the petitioners has submitted that in this case also one of the petitioner viz., Munusamy was found dead even prior to passing of the order. There arises a question as to whether that by itself would go to nullify the entire order on the ground of non application of mind. It may affect the area or the order applicable to that individual and in the cited case also it is not the order in its entirety was set aside solely on that ground. On the other hand, reference was made in that case to a decision K.V. Shanmugam v. State, 1978 LW (Crl.) 130, wherein it was stated that the notice issued under Section 111 of Cr.P.C., has to satisfy a double test. The first is that the notice must furnish all the information which is laid against a person or persons, and secondly, before issuing a notice, the Magistrate has to satisfy himself that the situation calls for the issuance of a show cause order. By applying the above two tests, the decision was arrived at in the above case in D. Murugesan and Ors. v. State, rep. by Inspector of Police (Crime), Nanguneri, In-charge Tisayanvilai, 1984 L.W. (Crl.) 283 that there was no such informations found in that case.
13. A perusal of Section 111 of Cr.P.C. would indicate that the show cause notice should only a set forth the substance of the information received. Nowhere it was mentioned that all the informations received in respect of the adversary attitude of the accused, shall have to be contained in the notice of show cause itself. A cursory reading of subsequent provisions of the Code of Criminal Procedure would indicate that the persons upon whom show cause notice was issued can, while making appearance before the Court would make an effective reply as contemplated under the subsequent provisions and that reply has to be considered and it is only after such consideration an order to execute a bond could be made. Thus, the 22 references and its substances mentioned in the course of the impugned order is enough at the stage of issuing a notice for show cause Under Section 111, Cr.P.C.
14. Learned counsel for the petitioners again relied on two citations (1) Lalookhan Haideralikhen v. M.M. Kumble, 1996 Crl.L.J.. 801 and (2) Santosh Vishwanath Shinde v. J.R. Sangam, Asst. Commissioner of Police & Anr., 1995 (1) Crimes 571. So far as the, first case is concerned there was three incidents viz., (i) for the offence under Sections 454, 457 and 380 of I.P.C. in one incident (ii) for the offence under Sections 302 and 307 of I.P.C. in another incident and (iii) for the offence under Section 324 r/w 34 of I.P.C. in the third case, held that since the notice does not say that the crimes registered against the petitioner are ended in his conviction, those information by themselves could not constitute the habituality of the offence as contemplated under Section 110(8) of Cr.P.C. Similarly the second cited case deals with only one solitary incident in the show cause notice and therefore it was held that no habituality of offence was proved there.
15. But here is a case where hazardous offences in nature not only by the continuous illegal sand mining, but also connected offences indulged against the officers posting on duty for preventing the same and making a serious scenario that made also the High Court to seize of the situation either in the contempt proceedings or in the writ proceedings in order to time and again issue directions to curb at the illegal and mining which also resulted in consequential categories of offences against the officers. This cannot be taken as solitary incident and even though it may appear only as solitary incident, it is a bundle of offences of the same nature done by various unsocial elements and it is the duty of the Government to take preventive measures. True, it is while doing so, one has to necessarily comply with the provisions of Sections 111 and 112 of Cr.P.C. The observations made by the Hon'ble Apex Court was due to the non-compliance of procedure subsequent to issue of show cause notice and they cannot be endeavoured to be made applicable at the stage when the show cause notice itself was given. The allegation that the petitioners were indulging in habitual offences made in the show cause notice is only upon various kinds of informations that could be made known to them during the course of subsequent enquiry and since what was mentioned was only the substance of the information received during the course of investigation, the description of alleged offences based upon the informations will not injure the image of petitioners.
16. Learned counsel for the petitioners relied on a citation in Vol. XVIII M.L.J. 689 and point out the following:
"The issue of notice is not a formal matter; it is a judicial act to be exercised after due consideration of the materials placed before him by the Magistrate (see In re, Kripasindhu Naiko and Harikrishna Naik (1); and therefore, the defects in the notice cannot in any way be remedied by explanations given by the Prosecuting Inspector at the time of the trial."
I have already found that factually this case stands in a different footing, this citation does not apply to the case in hand.
17. Since it was contended that Athur Doss is only a social worker, always pointing out the crime done by the others in connection with the illegal sand mining, he could even now co-operate in this procedure which had started only against the illegal acts. This is only a preventive measure against commission of offences and I find no reason to quash the same.
In the result, this Criminal Original Petition is dismissed for the foregoing reasons. Consequently, Crl.M.P.Nos. 12857 and 12858 of 2004 are also dismissed. Petitioners are directed to appear before the Executive Sub-Divisional Magistrate and Sub-Collector, on 30.3.2005.