Andhra HC (Pre-Telangana)
Mathangi Satyanarayana And Ors. Etc. vs State on 14 December, 1995
Equivalent citations: 1996(1)ALD(CRI)456, 1996CRILJ1809
ORDER
1. The respondents in M.C. No. 4/93 on the file of the Sub-Divisional Magistrate (Revenue), Eluru, have filed this petition under Section 482 of the Code of Criminal Procedure (for short 'the Code') to quash the proceedings initiated against them under Section 107 of the Code on the complaint dated 21-3-1993 made by the Inspector of Police, Ganapavaram Circle, Ganapavaram.
2. The facts which led to the filing of this petition are as follows : The Inspector of Police Ganapavaram, laid information before the Sub-Divisional Magistrate (Revenue), Eluru, (for short 'the Magistrate') on 21-3-1993 and sought initiation of action against the petitioners under Section 107 of the Code on the ground that there is imminent threat to peace and security to the public in Apparaopeta due to clashes between two rival groups one of which was headed by the first respondent. Thereupon, the Magistrate registered the case as M. C. No. 4/93 and caused notice dated 22-3-1992 on the petitioners, directing them to appear before him for enquiry at the office of the Revenue Divisional Officer, Eluru on 3-4-1993 at 3.00 p.m. Accordingly, the petitioners appeared before the Magistrate on 3-4-1993. Thereafter, the case was posted on several days either at Eluru or other places, everytime directing the petitioners to appear for enquiry. But, the said enquiry was not completed even though a period of six months has elapsed from the date of first posting, i.e., 3-4-1993. Therefore, the petitioner made an application before the Magistrate to terminate the proceedings in terms of the provisions of sub-section (6) of Section 116 of the Code. But, the Magistrate instead of disposing of that application, made an order dated 24-11-1993 under Section 111 of the Code, requiring the petitioners to show cause why they should not be directed to execute a bond of Rs. 1,000/- with two sureties each for the same amount and to keep peace in the village for a period of six months. Hence this petition.
3. The principal contention of Sri Vivekanand, learned counsel for the petitioners is that the proceedings stood automatically terminated on expiry of six months from the date of first posting for enquiry i.e., 3-4-1993. According to him, the enquiry under Section 116 (1) of the Code shall be deemed to have commenced with effect from 3-4-1993, the day the petitioners were directed to appear for enquiry before the Magistrate. He tries to sustain this submission on the basis of the provisions of Section (6) of Section 116 of the Code, which provide that :
"(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs :
Provided that where any person has been kept in detention pending such inquiry, the proceedings against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention."
4. There is no dispute that by notice dated 22-3-1993, the petitioners were directed to appear before the Magistrate for enquiry on 3-4-1993. But the question is whether could there be a valid enquiry under Section 116 (1) without there being an order made under Section 111 and the same being read over and explained to the concerned persons as contemplated under Section 111. We find a clear answer to this Section 116 (1) itself. It reads :
"(1) When an order under Section 111 has been read or explained under Section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary."
5. A careful reading of the above provisions leaves no doubt whatsoever that the Magistrate shall proceed with the enquiry only after reading over and explaining the order made under Section 111 to the concerned persons when they present themselves as provided under Section 112 or when they are brought before the Magistrate pursuant to the summons or warrant issued under Section 113. In other words, making an order under Section 111 and reading over and explaining the same to the concerned persons as contemplated under Section 112 are conditions precedent for commencing the enquiry under Section 116 (1) of the Code. But, in the case on hand, no order was made under Section 111 either when the notice dated 22-3-1993 was caused on the petitioners, directing them to appear before the Magistrate on 3-4-1993 or when they appeared before the Magistrate on 3-4-1993. It is not even the case of the petitioners that the substance of allegations made against them was explained to them at any time. Admittedly, the order under Section 111 was made only on 24-11-1993. Thus, there would be no difficulty to conclude that the enquiry conducted pursuant to the notice dated 22-3-1993 cannot be treated as enquiry under Section 116. Therefore, the contention that the enquiry shall be deemed to have commenced with effect from 3-4-1993 and it stood automatically terminated on expiry of six months thereafter cannot be accepted.
6. Learned counsel for the petitioners cited before me the ruling of a Full Bench of Patna High Court in Sitaramsingh v. State, (FB), to drive home his point. That was a case where the Executive Magistrate having made an order under Section 111 of the Code of 24-7-1974, having commenced the enquiry under Section 116 (1) and having directed the petitioners therein to execute adinterim bonds to keep peace in terms of Section 116(3) by an order dated 12-5-1975 failed to complete the enquiry even by 16-6-1975, without recording any special reasons for continuing the enquiry. On those facts, it was held that the proceedings stood lapsed due to efflux of six months time prescribed under Section 116(6). As already noted, the facts in the present case are altogether different. Therefore, the ratio decidendi of that case has no application to the present case. The other decision of Bombay High Court in Christalin Costa v. State of Goa, 1992 Cri LJ 3608 (Bom), cited by him does not also cover the point at issue.
7. Then remains the crucial question whether the procedure followed by the Magistrate in the present case is in accordance with the relevant provisions of Chapter XIII of the Code. The provisions of Chapter XIII of the Code containing Sections 106 to 124 deal with the powers of a Court of Sessions or Court of a Magistrate of First Class or an Executive Magistrate and the procedure to be followed for obtaining security bonds from person proceeded against thereunder for keeping the peace and good behaviour. The primary object of these provisions is to prevent persons from committing acts likely to result in breach of peace and public tranquillity. There can be no doubt that initiation of proceedings under this Chapter effect the liberty of persons proceeded against. Therefore, it cannot be denied that the procedure prescribed thereunder has to be strictly followed. On this aspect, it is sufficient to quote the following observation of a Constitution of the Supreme Court in Madhu Limaye v. Ved Murti, AIR 1971 SC 2481 :
"..... The Chapter then contains elaborate provisions for the procedure which the Magistrate must follow. Since the liberty of the person is involved, not because of anything he has done but because of the likelihood of breach of the peace or disturbance of the public tranquillity by reason of some act on his part, the provisions must obviously be strictly followed. Since the action is taken on the mere opinion of the Magistrate, the provisions of the Chapter naturally ensure that no case of harassment arises."
(Para 6)
8. In the light of the above, let us examine whether the Magistrate has followed the procedure prescribed under the relevant provisions of the Code. As already stated, he initiated action against the petitioners on the information laid before him on 21-3-1993 by the Inspector of Police, Ganapavaram. No doubt, the said information refers to involvement of some of the petitioners in three incidents that are alleged to have taken place on 23-9-1992, 27-10-1992 and 5-3-1993 and the consequential apprehension of breach of the peace and disturbance to the public tranquility. What the Magistrate should do on receipt of such information, is laid down in sub-section (1) of Section 107 of the Code. It reads :
"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 tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility 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, with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit."
9. Let us assume that on the basis of the information received from the Inspector of Police, Ganapavaram, the Magistrate formed the requisite opinion to proceed against the petitioner. Then he could have required the petitioners to show cause why they should not be ordered to execute bonds only by making an order under Section 111 of the Code. What the said order should contain, is laid down in the Section itself. It reads :
"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."
10. There is no dispute that the Magistrate did not make any order under the above section till 24-11-1993. However, he has been holding the enquiry for more than six months commencing from 3-4-1993, every time directing the petitioners to appear before him. It commenced with the notice dated 22-3-1993, which reads as under :
"Whereas the enquiry in a charge under Section 107, Cr.P.C. is posted to 3-4-1993 at 3.00 p.m., you are hereby directed to appear in person on the said date at Revenue Divisional Officer's Office, Eluru. Herein fail not."
11. It is significant to note that the above notice is not only silent about he substance of the information received against the petitioners but also failed to specify the amount of bond they are required to execute, the term of the said bond and the number, character and class of sureties they are required to furnish. Therefore, it has to be seen whether it is permissible for the Magistrate to hold an enquiry without making an order under S. 111 and without even notifying the substance of information etc., to the persons proceeded against. Certainly, it is not, in view of the provisions of Section 107 and 111 of the Code. A combined reading of these two sections makes it clear that once a Magistrate forms the requisite opinion under Section 107 that there is sufficient ground to proceed against the persons concerned, he must pass an order under Section 111, "setting forth the substance of the information received, the amount of 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." I am of the considered view that unless he complies the said mandatory provision of law, he will have no jurisdiction to direct the person proceed against to appear before him or to secure their presence for the purpose of enquiry. Obviously, he has failed to comply the same before issuing the notice dated 22-3-1993. Therefore, it may, safely be concluded that the enquiry held by the Magistrate from 3-4-1993 onwards is not only in contravention of the relevant provisions of law but also without jurisdiction.
12. The allegation in the petition that the petitioners appeared before the Magistrate on 3-4-1993, 24-4-1993, 12-7-1993, 31-7-1993, 28-8-1993, 18-9-1993, 25-9-1993, 11-10-1993, 16-10-1993, 11-11-1993, 27-11-1993, 6-12-1993, 16-12-1993 and 27-12-1993 is not denied by the State. Thus, the petitioners have already been subjected to prolonged enquiry without any authority of law. The incidents complained against them are of the year 1992 and 1993. They are also trivial in nature. In the circumstances, I consider it unjust to subject them to further enquiry pursuant to the order dated 24-11-1993 made under Section 111 of the Code.
13. For the aforesaid reasons, I am convinced that the petitioners have made out a case for quashing the proceedings initiated against them. Accordingly, they are quashed.
14. In the result, the petition is allowed.
15. Petition allowed.