Kasapparai v. State represented by Inspector of Police, Tiruvottiyur
1981-12-07
M.N.MOORTHY
body1981
DigiLaw.ai
Judgment This petition is filed to quash section 107, Criminal Procedure Code, proceedings initiated in M.C. No. 2 of 1977 on the file of the Sub-Divisional Magistrate and Sub-Collector, Saidapet, Chingleput District. The Preliminary order under section 107, Criminal Procedure Code reads as follows: “Whereas it has been reported by the petitioner that there is likelihood of breach of peace in Thiruchinankuppam, there is a strong feeling between the two groups and they had actually disturbed the public tranquility and create brach of peace in that Kuppam situated within the local limit of my jurisdiction: I, Thiru R. Gopalan, I.A.S., Sub-Divisional Magistrate and Sub-Collector, Saida-pet do hereby require the above respondents to appear before me in person or by Pleader at 11-30 a.m. On 7th April, 1979 at the Sub-Collector’s Office, Saidapet and put in written statement for your claims as to why orders should not be passed to execute a bond for keeping peace for a period of one year.” 2. The learned Counsel appearing for the petitioners raised two points. First he contended, the preliminary order passed in this instant case does not satisfy the requirements of section 111, Criminal Procedure Code, in that it failed to set 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 or sureties (if any) required. In support of his contention, the learned Counsel relied on a case reported in Manickam v. Emperor1, wherein it is held that the preliminary order should set forth every circumstance of the charge against the accused, to note 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. Where no such particulars are given in the preliminary order, it is not lawful for a Magistrate to order the execution of a surety bond. 3. The second point raised by the learned Counsel for the petitioners is there is nothing in the preliminary order passed by the Magistrate to show that the Magistrate was of the opinion that the facts give rise to the grounds, which are sufficient in his opinion for proceeding under section 107, Criminal Procedure Code.
3. The second point raised by the learned Counsel for the petitioners is there is nothing in the preliminary order passed by the Magistrate to show that the Magistrate was of the opinion that the facts give rise to the grounds, which are sufficient in his opinion for proceeding under section 107, Criminal Procedure Code. In support of his contention, Prabhakar v. Shankar2, was relied on by the learned Counsel wherein it is held: “A plain reading of section 107 (1), 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 proceeding under section 107, Criminal Procedure Cods. In the absence of such opinion by a Magistrate proceedings under section 107, Criminal Procedure Code, cannot be instituted.” 4. In the present case the order in question does not contain any such material. It doss not even show that the Magistrate has considered the facts contained in the report alleged by the Inspector of Police, Tiruvottiyur. There is nothing to show from the order that there are sufficient grounds for proceeding under section 107, Criminal Procedure Code. The order should contain these facts is also the ruling of our High Court reported in K.V. Shanmugam v. State3. 5. Both the points raised by the learned Counsel for the petitiorers are well-founded. The proceedings pending on the file of the Sub-Divisional Magistrate and Sub-Collector, Saidapet, in M.C. No. 2 of 1979, deserve to be quashed and are here by quashed. Proceedings quashed.