Andhra HC (Pre-Telangana)
Nimmagadda Ravi And Ors. vs State Of A.P. on 20 January, 1998
Equivalent citations: 1998(2)ALD621, 1998(1)ALD(CRI)401, 1998CRILJ1823
ORDER
1. These two petitions are filed under Section 482 Cr.P.C. to quash the proceedings initiated in M.C.No. 74/96 and M.C.No. 76/96 respectively, on the file of Sub-Divisional Magistrate, Guntur.
2. The petitioners in Crl. Petition No. 5062/96 are respondents in M.C.No. 74/96 and Petitioners in Crl. Petition No.5063/96 are the respondents in M.C.No. 76/96. On the-information furnished by the S.I. of Police, Vetticherukur Police Station, that there is likelyhood of breach of peace between two rival groups in Garapadu village, the proceedings under Section 107 Cr. PC have been initiated by the Sub-Divisional Magistrate, Guntur. Summons under Section 113 Cr.PC have been issued to all the respondents in both the cases, directing them to attend in person at the office of the Sub-Divisional Magistrate, Guntur on 25-7-1997 at 11 am. to show-cause why they should not be required to execute bonds for Rs. 5,000/- each and that they will keep peace for a term of two years. It appears that the petitioners herein have been appearing before the Sub-Divisional Magistrate, Guntur from time to time and the last date of adjournment was 17-12-1997 and as the said proceedings could not be completed within six months under sub-clause (6) of Section. 116 Cr.P.C. they have come up with these petitions to quash the said proceedings.
3. Sri K. Raja Reddy, the learned Counsel for the petitioners in both the cases raised the following contentions:
1. The summons issued to these petitioners under Section 113 Cr.P.C. are not legal and valid, as they are not accompanied by the order passed under Section 111 Cr.P.C.
2. In fact, no order under Section 111 Cr.P.C. has been passed by the Sub-Divisional Magistrate before issuing the summons under Section 113 Cr.P.C.
3. That directing respondents to enter into a bond for Rs. 5,000/- each for keeping peace for a term of two years is also bad as under Section 107 Cr. P.C. a person shall be ordered to execute a bond with or without surely for keeping the peace for such a period not exceeding one year as the Magistrate thinks fit.
4. As for the legality and validity of the summons in question, reference must necessarily be made to the relevant provisions contained in Chapter VIII of Cr.P.C. which deals with the procedure to be adopted by an Executive Magistrate while requiring a person to furnish a bond for maintaining peace or good behaviour as the case may be. Section 107 Cr.P.C. contemplates two distinct sets of circumstances in which a Magistrate may lake action thereunder, firstly, when a person is likely to commit a breach of peace or disturb the public tranquility by a direct act and secondly, when the person may be indirectly commit breach of peace or disturbance the public tranquility by committing a wrongful act. It is only when on receipt of any information to that effect, Magistrate is satisfied that there is sufficient ground for proceeding, he may require such a person to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for a period not exceeding one year. In that event, he must proceed in the manner provided in Chapter VIII itself. Section 111 Cr.P.C. lays down that when a Magistrate deems it necessary to require any person to show cause under Section 107 Cr.P.C., 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 enforced and the number, character and class of surety if any, required. Obviously, this provision which is mandatory in nature, has been designed not only to ensure that the Magistrate has to apply his mind to the facts of the case before initiating any preventive action, but also make the person proceeded against clearly understand what the matter is about, upon which he has to show cause to afford him reasonable opportunity to meet the case against him. A Magistrate acting under Chapter VIII has no power to act until after he has recorded an order in writing under Section 111 Cr.P.C. An order under Section 111 Cr.P.C. is analogous to a charge framed of the same in the case of a regular trial of an accused person for an offence. The order has to be read over to the person in respect of whom it is made though the Code does not provide that he should plead to it. When no such order under Section 111 has been drawn and consequently not communicated, there is no power given to the Magistrate to order detention or ask for a bond. Omission to comply with Section 111 renders the proceeding illegal. Under Section 112 Cr.P.C. if the person in respect of whom such an order under Section 111 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. Under Section 113 Cr.P.C. if such person is not present in Court, the Magistrate shall issue 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. Section 114 Cr.P.C. lays down that every summons or warrant issued under Section 113 shall be accompanied by a copy of the order made under Section 111 and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the same. Section 116 Cr.P.C. relates to the enquiry to be held before the Magistrate with regard to the proof of the information laid before him. Sub-section (6) of Section 116 Cr.P.C. says that the enquiry under this Section shall be completed within a period of six months from the date of its commencement and if such enquiry is not completed, the proceedings under Chapter VIII, on the expiry of the said period, shall stand terminated unless, for the special reasons to be recorded in writing by the Magistrate, otherwise directed. The proviso to sub-section (6) to Section 116 lays down that where any person has been kept under detention, pending such enquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of the period of six months of such detention.
5. The main contention of the learned Counsel for the petitioners is that no order under Section 111 Cr.P.C. has been passed by the learned Sub-Divisional Magistrate and even if it is passed, it has not been served on the petitioners along with summons issued under Section 113 Cr.P.C. Thus, he complains of non-compliance of the provisions under Section 111 and Section 115 Cr.P.C. which lays down that every summons or warrant issued under Section 1 ] 3 shall be accompanied by a copy of the order made under Section 111 and such copy shall be delivered by the officer serving or executing such summons or warrant Admittedly, in the instant case, while serving the summons issued under Section 113 Cr.P.C. the order passed under Section 111 Cr.P.C. was not sent along with the said summons. Therefore, there is no proper compliance of Section 114 Cr.P.C. As such, the summons issued to these petitioners is vitiated with illegality. Further, the contention raised by the learned Counsel for the petitioners that in fact, no order under Section 111 has been passed in this case is not disputed by the learned Addl. Public Prosecutor. This Court directed the learned Additional Public Prosecutor to find out whether actually an order under Section 111 has been passed or not The learned Additional Public Prosecutor submitted on instructions form the police that no such order has been passes by the Sub-Divisional Magistrate. Therefore, the summons, issued in the instant case, which were bereft of all necessary details which required to be contained in it, in my view, amounts to abuse of process of the Court and the very object of the safe-guards provided under Sections 111 and 114 of the Code against the arbitrary action and undue harassment of a citizen is frustrated. Furher, as seen from the summons served on these petitioners, they were directed to show cause why they should not be required to enter into a bond for Rs. 5,000/- to keep peace for a term of two years. This is contrary to the provisions under Section 107 Cr.P.C. where the maximum period for keeping peace is one year only. Apart from that, under subsection (6) of Section 116 Cr.P.C. the inquiry into me truth of the information on which the order under Section 111 has been passed against a person shall be completed within a period of six months from the date of the commencement of proceeding and if such enquiry is not completed, on the expiry of such period, the proceeding shall stand terminated, unless special reasons be recorded in writing by the Magistrate. It is not disputed that the said period of six months has already been expired by the date of filing of these petitions and there is nothing on record to show that the Sub-Divisional Magistrate has recorded any special reasons for continuation of the said proceedings or for the delay in completing the enquiry within the statutory period of six months. Thus, the continuation of the proceedings is illegal.
6. In Challa Somaiah & Others v. State of A.P., 1978 (2) ALT 432, this Court held in para 7 thus:
"In the case on hand, the Magistrate issued bare summons or notice which does not contain or is not accompanied by the preliminary order setting forth all the requirements enumerated above. The failure on the part of the Magistrate to issue the notice containing the preliminary order setting forth the particulars to be furnished in it under Section. 111 Cr.P.C. renders the proceedings illegal since the provisions of Section 111 are mandatory and not merely directory in natural and its disregard is illegality, but not irregularity:.
7. The facts in the case on hand are similar to the facts in the above said decision. In the instant case also, as earlier stated, bare summons have been issued without accompanying the order passed under Section 111 Cr.P.C. and in fact, it has come to light that the Magistrate had issued the summons even without passing an order under Section 111 Cr.P.C. Hence, the proceedings in both the cases are illegal as the Sub-Divisional Magistrate has not complied with the mandatory provisions under Chapter VIII Cr.P.C. Hence, the proceedings in both M.C.No. 74/96 and M.C.NO 76/96 are liable to be quashed.
8. In the result, both the criminal petitions are allowed. The proceeding in M.C.NO. 74/96 and M-C.No. 76/96 on the file of the Sub-Divisional Magistrate, Guntur are quashed.