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1988 DIGILAW 214 (KAR)

MAHADEVASWAMY v. STATE OF KARNATAKA

1988-06-15

K.B.NAVADGI

body1988
K. B. NAVADGI, J. ( 1 ) THESE Criminal Petitions are filed under S. 482 of the Cr. P. C. (the 'code' for short) and are directed against the preliminary orders made by the Taluka Executive Magistrate, Tumkur Taluk, Tumkur under S. 111 of the Code. Under the orders, challenged in these petitions, the Taluka Executive Magistrate has asked the petitioner in each of the petitions to show cause as to why he should not be ordered to execute a bond for Rs. 2,000/- with a surety for a like sum for keeping peace. ( 2 ) THE petitions were listed for admission with copies of the petitions being served on the learned State Public Prosecutor, representing the respondent. They have been heard finally by consent of the learned Advocate for the petitioners and the learned High Court Government Pleader for the State. ( 3 ) SINCE the question of law involved in these petitions is common, the petitions are disposed of by this common order. Keep the original order in the records and proceedings of Criminal Petition No. 694/1988 and retain the copies thereof in each of the record and proceedings of the other petitions. ( 4 ) THE facts of the matters are these : The President of Siddaganga Mutt at Kyasandra near Tumkur Town, Tumkur Taluk, Shri Shiva Kumar Swamiji, on 31-31988 dismissed Shri Gowri Shankar Swamii appointed by him earlier as his successor and in his place nominated on Shri Siddlinga Swamji. In the wake of these developments disturbances erupted. Several offences were committed during the disturbances, several cases have been registered in Kyasandra Police Station as mentioned and detailed in the show cause notice issued to the petitioners. The petitioner in each of these petitions is alleged to have been shown as accused person, in the case mentioned in the order, served on the concerned petitioner. ( 5 ) IT appears, the Sub-Inspector of Police, Kyasandra Police Station registered a case against each of the petitioners under S. 107 of the Code in F. I. R. No. 95 on 6-4-1988 and submitted it to the Taluka Executive Magistrate, Tumkur. It also appears that on 7-4-1988, the Sub-Inspector appeared in person before the Taluka Executive Magistrate and stated on oath that the facts stated in the First Information Report were true. It also appears that on 7-4-1988, the Sub-Inspector appeared in person before the Taluka Executive Magistrate and stated on oath that the facts stated in the First Information Report were true. ( 6 ) IT is on the basis of this information that the Talitka Executive Magistrate has issued the show-cause notice, to each of the petitioners. ( 7 ) EXCEPT the names of the petitioners and the crime numbers in which they are shown as accused persons, the contents of the show-cause notices issued to the petitioners are almost the same. To appreciate the contention urged on behalf of the petitioners, it is necessary to extract the material part of one of the show cause notices, issued by the Taluka Executive Magistrate in C. Mis. No. 9/88-89, which is the subject matter of challenge in Criminal Petition No. 694/1988. It reads : the Sub-Inspector of Police has produced first information No. 95 on 6-4-88 and has personally produced an affidavit Stating that the Contents of First Information are Correct, before me - the Taluka Executive Magistrate. There is a Sidhagangamath at Kyatasandra, near Tumkur. The President Shri Shivkumarswamji had appointed Shri Gaurishankarswamji as his successor. He unseated him on 31-3-88 and has appointed one Shri Shidhalingaswamji. This led to disturbances at Tumkar and other places. Therein the opponents have, it is reported, actively participated and have encouraged the offenders, and have taken law in their hands, and committed breach of peace and thereby affected public peace. Besides, it has been informed that they are involved in Crime Nos. 212/86, 220/86, 118/86 and 136/87 as accused in Kyatasandra Thana (Police Stn. ). On consideration of these factors and events at the math it is clear that atmosphere of disturbance has arisen and I am satisfied that the opponents may cause breach of peace at any time. By exercise of powers vested in me under S. 111 of Code of Criminal Procedure. I hereby pass on order directing you to show cause as to why you should not execute a bond for Rs. 2000/- with one surety for like amount, for maintaining peace at Shidhaganga Math and other places. By exercise of powers vested in me under S. 111 of Code of Criminal Procedure. I hereby pass on order directing you to show cause as to why you should not execute a bond for Rs. 2000/- with one surety for like amount, for maintaining peace at Shidhaganga Math and other places. ( 8 ) LEARNED Counsel for the petitioners submitted that the preliminary orders made by the Taluka Executive Magistrate, assailed in these petitions are illegal, being not in accordance with the provisions contained in S. 111 of the Code and that therefore they are liable to be set aside. Elaborating further, he contended that the proceedings initiated against each of the petitioners on the basis of such illegal and unsustainable preliminary order cannot be allowed to stand and therefore is liable to be quashed. ( 9 ) LEARNED High Court Government pleader for the State very fairly submitted that there is serious defect in each of the preliminary orders issued by the Taluka Executive Magistrate and that the preliminary orders challenged in these petitions may be set aside and appropriate orders, to meet the ends of justice may be passed. ( 10 ) THE provisions of Chap. VIII of the Code are preventive in their scope, ambit and object and are aimed at persons who are a danger to the public by reason of the commission of certain offences by them. The Magisterial jurisdiction envisaged by Chap. VIII constitutes a powerful adjunct to the executive authority, salutary if used properly and over a sufficiently extended period. ( 11 ) THE nature of the proceedings under S. 107 of the Code, essentially and basically is of preventive justice. The proceedings can be taken against a person if he is likely (a) to commit a breach of the peace or disturb the public tranquillity; or (b) to do any wrongful act that may probably occasion the breach of the peace or disturb the public tranquillity. Two things are necessary to initiate an action under S. 107; (1) Information should be laid before a Magistrate and (2) the Magistrate should be satisfied that there was sufficient ground for proceeding. Two things are necessary to initiate an action under S. 107; (1) Information should be laid before a Magistrate and (2) the Magistrate should be satisfied that there was sufficient ground for proceeding. ( 12 ) SECTION 107 (1) requires that when an Executive Magistrate receives information that any person is likely to commit breach of the peace or disturb tranquillity or to do any wrongful act, that may probably occasion a breach of the peace or disturb the public tranquillity and is of the opinion that there is sufficient ground for proceeding, he may 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 he (the Magistrate) thinks fit. ( 13 ) IT is only when a Magistrate acting under S. 107 of the Code deems it necessary to require any person to show cause as stated above, he has to 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 class of sureties if any required. ( 14 ) IT is very clear that an obligation is cast on the Magistrate under S. 111 of the Code to set out in the preliminary order the substance of the information received, the bond to be executed, the term for which it has to be in force and the number, character and class of sureties if any required. Failure to comply with the requirements of S. 111 of the Code would vitiate the preliminary order and consequently the proceedings. The preliminary order contemplated under S. 111 of the Code is a judicial order in the nature of la charge. It has to be prepared and drawn up cautiously and carefully and must comply with all the requirements stated in the Section. S. 107 of the Code states in clear and unambiguous terms that the Magistrate while issuing show cause notice can ask the person proceeded against to show cause why such person should not be ordered to execute a bond with or without sureties for keeping peace for such periodnot exceeding one year,as he (Magistrate) thinks fit. S. 107 of the Code states in clear and unambiguous terms that the Magistrate while issuing show cause notice can ask the person proceeded against to show cause why such person should not be ordered to execute a bond with or without sureties for keeping peace for such periodnot exceeding one year,as he (Magistrate) thinks fit. ( 15 ) IN view of the fact that the person proceeded against cannot be asked to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for more than one year, the preliminary order issued under S. 111 cannot state that the amount of a bond to be executed has to be in force for a period exceeding one year. ( 16 ) IF we carefully scrutinise the contents of the preliminary orders challenged in these. I petitions it would be clear that the Taluka Executive Magistrate has asked each of the petitioners to show cause why he should not be ordered to execute the bond for keeping the peace, in a sum of Rs. 2,000/- with a surety, without mentioning theperiod during which such bond is to be in force. The preliminary orders challenged in the petitions appear to be clearly erroneous and illegal inasmuch as they require the concerned petitioners to execute bonds for keeping the peace for an indefinite period. The Talukal. Executive Magistrate, acting under S. 107 cannot ask a person proceeded against to show cause as to why he should be ordered to execute the bond with or without surety for keeping the peace for a period not exceeding one year. It would be different to read in the preliminary orders under challenge that the concerned petitioners have been asked to execute bonds for keeping the peace either for one year or for a period less than one year. ( 17 ) THE preliminary orders are clearly not in compliance with the provisions of law. They are illegal and therefore unsustainable. They are liable to be set aside. ( 18 ) THIS Court in Criminal Petition No. 672 of 1988 connected with Criminal Petitions Nos. ( 17 ) THE preliminary orders are clearly not in compliance with the provisions of law. They are illegal and therefore unsustainable. They are liable to be set aside. ( 18 ) THIS Court in Criminal Petition No. 672 of 1988 connected with Criminal Petitions Nos. 673 and 674 of 1988, with identical facts has taken the view that where the preliminary order issued does not state as to the period for which the bond has to be executed, would be in fact a preliminary order not in compliance with the provisions of law and as such would be liable to be set aside. ( 19 ) IN the result, for the reasons aforesaid, the criminal Petitions are allowed. The preliminary orders challenged in the Criminal Petitions are hereby set aside. The proceedings initiated against each of the petitioners are hereby quashed. ( 20 ) HOWEVER it is made clear that it would be open for the Taluka Executive Magistrate to initiate the proceedings against the petitioner in each of these petitions under S. 107 of the Code if he is still of the opinion on the basis of the information received by him that initiation of the proceedings is warranted. Petitions allowed. --- *** --- .