Jayavelu v. Inspector of Police, Oomachikulam Circle, Madurai District.
1987-12-10
PADMINI JESUDURAI
body1987
DigiLaw.ai
Order 1. The petitioners against whom the Sub Divisional Magistrate and Revenue Divisional Officer, Madurai has initiated proceedings underS.107, Crl. P.C., in M.C.No. 1635 of 1987 invoke the inherent powers of this Court underS.482, Crl. P.C, to quash the above proceedings. 2. Apprehending breach of peace, the Executive Magistrate initiated proceedings under S.107 , Crl.P.C, and had issued notice underS.111, Crl.P.C, requiring the petitioners to show cause as to why they should not be required to execute a bond. The above notice underS.111, Crl.P.C, is now challenged. 3. Thiru M. Ravindran, learned counsel for the petitioner based his prayer on two grounds. (i) the order of the Executive Magistrate passed underS.111 , Crl.P.C., requires the petitioner to show cause as to why they should not be required to execute an interim bond underS.116(3), Crl.P.C, for a sum of R. 500 and that this is in violence of not only the provisions of the Code, but also the decisions of this Court. 2. the impugned order does not show under what provision the Executive Magistrate proposes to take action, sinceS.111 , Crl.P.C, is common toSs.107 ,108 , 109 and 110, Crl.P.C. 4. The impugned order passed underS.111, Crl. P.C contains nine instances, from which the authority had reasonable grounds for apprehending breach of peace, justifying commencement of the proceedings. Thereafter the petitioners are required to show cause on 10th August, 1987, at 3 p.m., as to why they “should not be required to execute a bond for a sum of Rs. 500, for six months (for their) good behavior and also for the execution of interim bond as perS.116(3), Crl.P.C, for the like sum, until the disposal of the case.” This shows that the petitioners have been required to show cause as to why they should not be required to execute an interim bond underS.116(3), Crl.P.C. It is settled law that an interim bond underS.116(3) , Crl, P.C, can be ordered to be executed only after the commencement of the enquiry underS.116(1) , Crl.P.C When a Magistrate decides to take action under any one of the provisions ofSs.107 ,108 ,109 ,110 , Crl.P.C, he has to issue a notice underS.111, Crl.P.C. requiring the persons against whom he proposes to action, to show cause as to why a bond should not be obtained from them.
This notice underS.111, Crl.P.C, has to contain the grounds of his satisfaction, the bond amount, the terms of the bond and the nature of the sureties, if any. This order underS.111 , Crl.P.C, has to be served on the counter petitioners, if they are present in Court directly as required underS.112, Crl.P.C, and if not by issue of summons and if in custody by a warrant, requiring them to appear before the Magistrate on a particular day. The summons or the warrant, as the case may be, should be accompanied by a copy of the order made underS.111 , Crl.P.C When the counter petitioners, in response to the above notice appear before the Magistrate, the late underS.116(1), Crl.P.C, should proceed to inquire into the truth of the information on the basis of which proceedings have been commenced and has to take such further evidence as may be necessary. The evidence is to be recorded in the manner provided for in summons cases. It is after this stage, that the question of requiring an interim bond would arise. The very wording ofS.116(3) , Crl.P.C, clearly indicates that after the commencement and before the completion of the inquiry under Sub-S.(1) the Magistrate may, if he considers, that immediate measures are necessary for the prevention of the breach of the commission of an offence or for the public safety for reasons to be recorded in writing, direct the person in respect of whom an order underS.111, Crl.P.C, has already been made,to execute an interim bond. The procedure, therefore, clearly indicates that the question of an interim bond would arise only after the counter petitioners have appeared before the Executive Magistrate and after the Executive Magistrate has commenced the enquiry. Even for requiring an interim bond, the Executive Magistrate has to record his reasons. This Court in Thenmalaiyandi v. The State through the Inspector of Police, Perayur 1983 L.W. (Crl.) 313, as also in Perumal and others v. State rep., by the Inspector of Police, Aruppukottai 1984 L.W. (Crl.) 173, has held that the Executive Magistrate cannot direct execution of an interim bond until the inquiry underS.116(1), Crl.P.C, has really commenced. Apart from thatS.116(3), Crl.P.C, does not contemplate any show cause notice, for requiring an interim bond.
Apart from thatS.116(3), Crl.P.C, does not contemplate any show cause notice, for requiring an interim bond. All that the Executive Magistrate is required to do is, to record his reasons as to why an interim bond is necessary and thereafter direct the execution of an interim bond. In the instant case the impugned order clubs the provisions ofS.111 , Crl.P.C, and the provisionsS.116(3), Crl.P.C, which really cover two different stages and two different situations. The order, therefore, cannot be sustained. 5. The next contention of the learned counsel for the petitioners has also to be accepted. As rightly contended by the learned counsel, the impugned order underS.111, Crl.P.C. makes no reference to the provision of law, under which the Executive Magistrate proposes to take action. It is not known whether the action is sought to be taken either under Ss. 107 or108 or109 or110, Crl. P.C.S.111, Crl.P.C., is common to the above four sections. The contention of the learned Public Prosecutor that the, ingredients ofS.107 , Crl.P.C, have been mentioned in the impugned order and that therefore, it would be possible for the petitioners to find out, that the proceedings are really initiated underS.107, Crl.P.C, cannot be accepted. The order should mention under which of the above sections, viz., whether underS.107 orS.108 or Ss.109 or110 proceedings are commenced so as to enable the petitioners to know under which provision of law they are proceeded against. On this ground also the order has to be set aside. In the result this petition is allowed and the proceedings in M.C. No.1635 of 1987 on the file of Sub Divisional Magistrate and Revenue Divisional Officer, Madurai are quashed. B.S. ----- Petition Allowed.