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Madras High Court · body

2001 DIGILAW 1441 (MAD)

K. N. Kunhiraman Nambiar v. State of Kerala

2001-11-30

E.K.MOIDU

body2001
Order.- This revision petition arises from proceedings instituted by the Police against the present petitioners under section 107 of the Code of Criminal Procedure afore the Executive First Class Magistrate, Kasaragod. The Inspector of Police, Kasaragod, made the report on 27th December, 1969. which was countersigned by the Deputy Superintendent of Police. On the basis of that report, the learned Magistrate passed the following order: "Whereas I am satisfied from the report No. 166/69 dated 27th December, 1969, of the Inspector of Police, Kasaragod duly countersigned by the Deputy Superintendent of Police, Kasaragod, that the counter-petitioners Nos. 1 to 34 being members of the Marxist Communist Party workers had planned to attack the Adhur Police Station with a view to commit dacoity and murder and to wreak political vengeance and to create lawlessness and a feeling of insecurity and to continue such acts within the local limits of Adhur Police Station, within the jurisdiction of this Court. And whereas it is reported that in prosecution of the common object to commit violence — (i) On 23rd December, 1969 C.Ps. Nos. 1 to 31 have formed themselves into an unlawful assembly at the residence of C.P. 1 at Talapallam in Bandadka Village with intent to give training to each member of the unlawful assembly, both to execute the planned scheme and for the purpose have collected arms, ammunitions and other lethal weapons, without licence to possess or retain such weapons. (ii) C.P.No. 1 to C.P. Nos. 34 have conspired to execute the planned attack and fixed the date for operation as 12th January, 1970, as per the documents seized by the Police from two of the persons arrested on 23rd December, 1969 in Adhur Police Station Crime No. 94 of 1969 under sections 143, 120-B, Indian Penal Code and section 3 read with rule 5 (1) and section 35 of the Indian Arms Act, 1959. (iii) And whereas it is believed by the police that the counter-petitioners are likely to execute their plan on any date instead of 12th January, 1970, as planned earlier, in view of the fact that the police got knowledge about the date fixed by the counter petitioners and if the planned scheme is executed, there is possibility for imminent breach of the peace and tranquillity. And whereas I am satisfied that the counter-petitioners are apt to commit acts of violence and the acts likely to cause to breach of the peace and are intent on continuing to commit such criminal acts, I hereby direct the counter-petitioners to appear before me on 8th January, 1970 at 11 a.m. at the Court and to show cause why they should not be called upon to execute personal bonds for Rs. 2,000 each with the solvent sureties for a like amount that they will keep the peace for a period of one year from this date. And whereas I am further satisfied that likelihood of the breach of the peace is imminent and cannot be prevented except by detaining the counter-petitioners in custody I hereby issue warrants for the arrest of the counter-petitioners. The Sub Inspector of Police, Kasaragod is hereby directed to execute the warrants and to produce the counter-petitioners before me forthwith. Given under my hand and seal of this Court this 27th day of December, 1969”. The learned Counsel for the revision petitioners contended that in passing the above order, the provisions of sections 112 and 114, Criminal Procedure Code have not been strictly complied with. The Magistrate took up the proceedings in this case under section 107, Criminal Procedure Code. A Magistrate acting under section 107, Criminal Procedure Code is required to make an order in writing under section 112, Criminal Procedure Code. The relevant portion of section 112 is as follows: “When a Magistrate acting under section 107 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.” Section 114 empowers a Magistrate to issue warrant for the arrest of a person if there is reason to fear the commission of a breach of the peace and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such, person. The question is whether a Magistrate can issue a warrant for arrest without issuing an order under section 112 as contemplated by the Code. The question is whether a Magistrate can issue a warrant for arrest without issuing an order under section 112 as contemplated by the Code. Section 115, Criminal Procedure Code, reads: “Every summons or warrant issued under section 114 shall be accompanied by a copy of the order made under section 112, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same.” The above section shows that an order must be passed under section 112 before a Magistrate issues a warrant under section 114. In Jatoi v. Emperor1, it was held: “In an inquiry under section no, Criminal Procedure Code, a Magistrate derives jurisdiction to issue a warrant against a suspect only after he had passed an order under section 112 of the Code and after he has satisfied himself that there is reason to fear the commission of a breach of the peace and that such breach of the peace cannot be prevented otherwise than by immediate arrest of the suspect.” In Babu Ram v. Rex,2 it was held: “A Magistrate has no power to order arrest with a view to his taking action under section 107, Criminal Procedure Code, unless the case falls under section 107 (3) that is to say, the Magistrate is not authorised to initiate proceedings under that section. Hence where there is an apprehension of a danger of breach of peace and the Magistrate present on the spot is empowered to proceed under section 107, it is irregular for the Magistrate to arrest some persons on the spot and then start proceedings under section 107. The proper course in such case is to formulate then and there an order under section 107 read with section 112 and serve it on the persons concerned and then it would be open for the Magistrate to order their arrest under section 114.” It has been held that the failure of the Magistrate to pass an order was not a mere irregularity, but constituted an illegality. That is the view expressed in Zahir Ahmad v. Ganga Prasad1, the opinion is as follows: “The scheme of the provisions of Chapter VIII in general and that of sections 112 and 114 of the Code of Criminal Procedure is that until an order contemplated by section 112 is passed, the information received by a Magistrate remains only an information which has not been checked and can thus provide no foundation for subsequent proceedings in the case. It is only after the Magistrate has passed the order under section 112 that he can proceed further. We are, therefore, of the opinion that the provisions of section 112 are mandatory and not merely directory in their nature and its disregard cannot be created to be a mere irregularity. This conclusion is borne out from the language of section 112 itself which provides that if the Magistrate deems it necessary to require any person to show cause under such section, he is to make an order in writing as provided by that section.” The above view found support from a decision reported in Emperor v. Rameshwar2, where Knox J. observed as follows: “In any case, a Magistrate acting under Chapter VIII of the Code has no power to act until after he has recorded an order in writing under section 112. If this case had been properly dealt with, the Magistrate should, under section 112, have made 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 was to be in force, and the number, character and class of sureties required. That should then and there have been read over to Rameshwar and others under section 113.” The Madras High Court in Krishnaswami Thathachari v. Vanamamalai Bhashiakar3, took a similar view. In that case no order was passed under section 112 of the Code of Criminal Procedure and the Madras High Court observed as follows: “No such order was passed. The omission was a non-compliance with an express provision of the law, and therefore, renders the subsequent proceedings invalid.” The Nagpur High Court in Narasayya Lachmayya v. State4, took a similar view. That Court expressed itself in the following words: “The failure of the Magistrate to pass an order was not a mere irregularity, but constituted an illegality. The omission was a non-compliance with an express provision of the law, and therefore, renders the subsequent proceedings invalid.” The Nagpur High Court in Narasayya Lachmayya v. State4, took a similar view. That Court expressed itself in the following words: “The failure of the Magistrate to pass an order was not a mere irregularity, but constituted an illegality. There is an express breach of a mandatory provision of law if a warrant is issued without making an order in writing under section 112. “It is also held in Zahir Ahmad v. Ganga Prasad5, that the provisions of section 114, Criminal Procedure Code are mandatory. It has also to be held that the Magistrate cannot pass an order under section 112 combined with an order under sub-section (3) of section, 117, Criminal Procedure Code. The circumstances under which the compliance of section 117(3) Criminal Procedure Code is required is set forth in a decision reported in Mrs. Courpalay and another v. State of Mysore6. The observation at paragraph 7 of that decision is as follows: “An order to furnish security pending the completion of the inquiry should be made under sub-section (3) of section 117 only after the requirements of sub-section (1) of that section are fulfilled. It is necessary that the. reasons for making: the order should be recorded in writing. Where an order under section 117 (3) is made by the Magistrate even before the persons to be proceeded against under section 107 appeared before him, nor has he recorded his reasons in writing for making that order, the Magistrate fails to fulfil both the requirements necessary for making an interim order under section 117 (3)." But, the fulfilment of the above conditions set forth under section 117 (3) Criminal Procedure Code was not called in question in the instant case. It could not be contended that in this particular case, the learned Magistrate proceeded with the enquiry as required by section 117 (1), Criminal Procedure Code. It was only after the enquiry is started under that sub-section that the necessity for taking an interim bond under section 117 (3) comes up for consideration. In the instant case, the learned Magistrate issued a combined order, both in respect of sections 112 and 114, Criminal Procedure Code. It was only after the enquiry is started under that sub-section that the necessity for taking an interim bond under section 117 (3) comes up for consideration. In the instant case, the learned Magistrate issued a combined order, both in respect of sections 112 and 114, Criminal Procedure Code. Section 114, Criminal Procedure Code reads as follows: "If such person is not present in Court, the Magistrate shall issue a sommons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to bring him before the Court: Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate], that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest." The proviso to that section is intended for a case of emergency. The report of the Inspector of Police showed that there was such an emergency in the particular circumstances of the case. Therefore, the Magistrate was bound to consider whether the petitioners were to be arrested or not. When the report was received by him, he had, as a matter of fact, made a separate order that the arrest of petitioners was absolutely necessary. It was on the basis of that order that he passed a combined order under section 112 read with the proviso to section 114 to arrest the petitioners. Therefore, the provisions of section 112 have been substantially complied with. Similarly, the Magistrate must satisfy that on the basis of the information furnished to him that it was a case of emergency in which he has to act. The entire information set forth in the order indicates that the Magistrate had materials before him to act under section 114, Criminal Procedure Code. There is no provision in the Criminal Procedure Code prohibiting a Magistrate issuing a combined order under section 112 read with the proviso to section 114, in case of an emergency depending, however, on the facts and circumstances of each case. There is no provision in the Criminal Procedure Code prohibiting a Magistrate issuing a combined order under section 112 read with the proviso to section 114, in case of an emergency depending, however, on the facts and circumstances of each case. If there is no provision in the Code that the Magistrate should furnish first an order under section 112, Criminal Procedure Code and then an order under the proviso to section 114, Criminal Procedure Code in respect of the same incident wherein the Magistrate apprehends imminent breach of peace requiring the arrest of a party who is not before the Magistrate at the time of passing the order, there cannot be any legal impediment for the Magistrate passing a combined order provided the provisions of those two sections are otherwise complied with. The materials furnished by the Inspector of Police speak for themselves that there was such an emergency to issue the warrant of arrest against the petitioners. I am, therefore, satisfied that in the circumstances of the present case there has not been any non-compliance with the provisions of either section 112 or the proviso to section 114 or section 115, Criminal Procedure Code in initiating proceedings against the petitioners under section 107, Criminal Procedure Code. It follows that the revision petition has no merit in the result the revision petition is dismissed. M.C.M. ------ Petition dismissed.