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1971 DIGILAW 249 (MAD)

M. C. S. Rao and 29 others v. State of Mysore

1971-03-26

M.S.NESARGI

body1971
Order- In this petition, the petitioners have challenged the preliminary order passed under section 112 of the Criminal Procedure Code, in a proceeding tinder section 107 of the Criminal Procedure Code, by the Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore, in S.P. No. 14 of 1970-71, on 29th January, 1971. The petitioners were respondents in the said case before the Sub-Divisional Magistrate. The preliminary order is a very short one and all that it reads to show is that the Sub-Inspector of Police, Jalahalli Police Station, had reported that the present petitioners were employees of Bharath Electronics Limited, Bangalore; that they were members of Bharath Electronics Employees Union; that they were on rival terms with the members of Bharath Electronics Karmika Sangh; that they were indulging in violent and unlawful acts: and that thereby there was likelihood of breach of peace in the limits of Jalahalli Police Station. It further reads to show that therefore they were required to show cause as to why they should not be ordered to execute a bond in a sum of Rs.1,000 with one surety. 3. The learned Counsel for the petitioners contended that the order is in violation of the provisions of sections 107 and 112 of the Criminal Procedure Code, inasmuch as nowhere has it been recorded by the Sub-Divisional Magistrate that on the facts reported by the Sub-Inspector of Police, Jalahalli, he was satisfied that there was likelihood of breach of peace. He placed reliance on the decision in Chinnaya Chettiar v. State of Mysore1. The learned Government Pleader fairly stated that he was unable to support the order passed by the Sub-Divisional Magistrate. 4. In the decision cited above also the preliminary order stated that information had been laid by the Circle Inspector of Police, Mangalore Circle, before the Sub-Divisional Magistrate, that from the incidents which had taken place on the 18th, 19th and 20th April, 1968, there was likelihood of the respondents committing breach of the peace. There was nothing to show in that preliminary order that on the said information the Sub-Divisional Magistrate had formed an opinion that there was sufficient ground for proceeding under section 107 of the Criminal Procedure Code. There was nothing to show in that preliminary order that on the said information the Sub-Divisional Magistrate had formed an opinion that there was sufficient ground for proceeding under section 107 of the Criminal Procedure Code. His Lordship, Sadashivayya, J., (as he then was) held that in the absence of any material on the face of the preliminary order to show that the Magistrate had been satisfied that there was likelihood of the breach of the peace being caused by the person proceeded against, the preliminary order cannot be sustained. 5. Section 107(1) of the Criminal Procedure Code, lays down that whenever such a Magistrate is informed 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, the Magistrate, if, in his opinion, there is sufficient ground for proceeding, may, in manner provided for that purpose, require such person to show cause...... A plain reading of section 107(1) of the Criminal Procedure Code makes it abundantly clear that it is absolutely necessary that the Magistrates should consider the facts contained in the information received by them and form an opinion that the facts give rise to grounds which are sufficient in their opinion for proceedings under section 107 of the Criminal Procedure Code. In the absence of formation of such opinion by a Magistrate, proceedings under section 107 of the Criminal Procedure Code, cannot be instituted. The order in question does not contain any such material. It does not even show that the Sub-Divisional Magistrate had considered the facts contained in the report lodged by the Sub-Inspector of Police, Nalahalli Police Station, and those did, in his opinion, give rise to sufficient grounds for proceeding under section 107 of the Criminal Procedure Code. 6. In the result, this petition is allowed and the order passed by the Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore, in S.P. No. 14 of 1970-71 on 29th January, 1971, is set aside. S.V.S. ----- Petition allowed.