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2001 DIGILAW 1501 (MAD)

Rattan Pillai v. Vasudevan Namboodiri

2001-11-30

P.NARAYANA PILLAI

body2001
Order: The order sought to be revised is a preliminary order passed under section 112 of the Code of Criminal Procedure and the relevant portion of it reads: "Whereas it has been made to appear to me and I am satisfied from the enquiries made by me that the counter petitioners residing within the local limits of the jurisdiction of this Court are threatening the petitioner, that the counter petitioner 1 became inimical towards the petitioner on account of the Civil Suit and is threatening the petitioner and his family that on 16th March, 1970 counter petitioners 4 and 6 threatened to do away with the life of the petitioner, on the same day midnight counter petitioners 2 and 6 with a penknife attempted to attack the petitioner but he escaped, that the counter petitioners individually and jointly tried to take away forcibly the petitioner’s property and to do away with the petitioner, that such activities of the counter-petitioners are detrimental to the peaceful life of the petitioner and his family that the counter-petitioners are always involved in criminal activities which are likely to lead to breach of peace, I hereby direct the counter-petitioners under section 107, Criminal Procedure Code, to appear before this Court at 11 A.M. on 24th April, 1970 and to show cause why they should not be ordered to execute bonds for Rs. 1,000 each with two solvent sureties each for the like amount to keep the peace for a period of one year.“ I shall now read the material portion of section 107 and section 112 of the Code of Criminal Procedure: “107 (1) Whenever a Presidency Magistrate; District Magistrate, Sub-divisional Magistrate or Magistrate of the first class 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 hereinafter provided, 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 the Magistrate thinks fit to fix.” “112. When a Magistrate, acting under section 107, section 108, section 109 section no 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.” The contentions of the revision petitioner who is the 1st counter petitioner in the proceeding under section 107 and who would be referred to hereafter as the petitioner are that the Executive First Class Magistrate, Kottayam, who passed the order was not justified in passing it under section 112 as there was not enough material before him to be satisfied that a breach of the peace was likely, that the order was defective in that it did not specify the source of the information and that it was one passed without jurisdiction in that he relied upon the result of his own personal enquiries in order to start the proceedings. On 23rd March, 1970 the respondent in this revision petition, who would hereafter be referred to as the respondent, filed a petition before the Magistrate requesting him to take action against the petitioner and six others. The substance of what he alleged there is what is incorporated in the preliminary order. The Magistrate sent that petition to the police for report. The report of the Sub-Inspector of Police reads: “I made enquiries with this. Enquiry revealed that C.P. No. I was a dependant and friend of the late father-in-law of the petitioner. Srinikethan house and the adjacent properties belonged to the father-in-law of the petitioner and now it belongs to the wife of the petitioner and her sister. C.P. No. 1 was allowed to occupy a house at Srinikethan compound which belongs to the wife of the petitioner for a period of six months. But C.P. No. I did not vacate the house as per that condition and the petitioner filed a civil suit against C.P. No. I for his eviction. The case is pending before the Court. Now the petitioner and C.P. are on inimical terms. C.P. No. 1 tried to take possession of the property surrounding the house with the help of some of the C.Ps. mentioned in this petition. The case is pending before the Court. Now the petitioner and C.P. are on inimical terms. C.P. No. 1 tried to take possession of the property surrounding the house with the help of some of the C.Ps. mentioned in this petition. The petitioner informed me about the matter and I visited the scene and warned the C.Ps. not to create any trouble to the petitioner. Regular patrols are being sent to that area and the situation is being watched. Nothing untoward has happened so far. The property is now under the possession of the petitioner and he is cultivating it and taking the yield. At present there is no need to take action under section 107 Criminal Procedure Code, against the C.Ps. The situation is being closely watch and if it is found necessary to take action under section 107, Criminal Procedure Code against the C.Ps. report will be submitted without delay." This report was received by toe Magistrate on 8th April, 1970. In the meanwhile on 28th March, 1970 the petitioner filed an application before him requesting that he may also be heard before action was taken under section 107. When the report of the police was received the Magistrate ordered notices to be issued to the respondent and the petitioner for appearance before him the next day. The next day, i.e., on 9th April, 1970 the Magistrate after hearing the respondent and the petitioner’s advocate passed an order which reads: "From the police report it is clear that nothing serious has happened so far. Perusal of the petition also reveals the same thing. But what the petitioner complains of is threatening by the C.Ps. and showing of knife to kill him. If threatening is resorted to when the petitioner is alone or is going home at night, it is bound to create a sense of terror in the mind of toe petitioner. On hearing the petitioner and the advocates for C.P. I am convinced that the circumstances are conducive to such threatening by the C.Ps. Because of the property disputes the two sides are on inimical terms with each other, as reported by the Police. And threatening by one of the parties to kill the other is only a concomitant of this dispute. Since such threatening by the C.Ps. Because of the property disputes the two sides are on inimical terms with each other, as reported by the Police. And threatening by one of the parties to kill the other is only a concomitant of this dispute. Since such threatening by the C.Ps. is likely to lead to breach of the peace, it is advisable to take necessary steps to prevent breach of the peace by initiating action under 107 Criminal Procedure Code." On the same day the respondent filed another petition before the Magistrate making; certain additional allegations against the petitioner. Preliminary order in a proceeding of this kind can be passed only if the provisions of both the sections, 107 and 112, are satisfied. The Magistrate should first get information that breach of the peace is likely. He should form the opinion that there is sufficient ground for starting the proceeding and deem it necessary that the person against whom the proceeding had to be commenced should be required to show cause why action should not be taken under section 107. The substance of the information received by the Magistrate should be mentioned by him in the preliminary order also. In the present case from the petition filed by the respondent on 23rd March, 1970 the Magistrate got information that breach of the peace was likely. In order to form an opinion whether breach of the peace was likely or not and to make up his mind whether toe petitioner should be asked to show cause why precedings should not be started against him under section 107 the Magistrate sent the petition to the police for report. After the police submitted the report the Magistrate was not bound to accept blindly all that was contained in it. He had to form his own opinion about it and for that he was not bound to confine his attention to the police report also. Although in the concluding portion of the report the police stated that it was not necessary to take immediately action under section 107 against the petitioner the earlier portions showed that the feelings between the parties were very much strained and that the area was being partolled. Although in the concluding portion of the report the police stated that it was not necessary to take immediately action under section 107 against the petitioner the earlier portions showed that the feelings between the parties were very much strained and that the area was being partolled. Therefore there was nothing wrong if the Magistrate formed the opinion on a reading of the entire report that breach of the peace was likely and took a decision that the petitioner should be asked to show cause why security proceedings should not be started against him. Based on that he could also have passed a preliminary order on the same date on which he received the report. But as an officer with a judicial bent he decided to hear both the parties before he made up his mind whether the preliminary order should be passed or not and the petitioner invited him for adopting such a course by filing an application on 28th March, 1970, The words " enquiries made by me" appearing in the preliminary order have reference in the circumstances only to the sending of the petition, dated 23rd March, 1970 to the police, the report thereon by the police and the hearing by the Magistrate of the respondent and the petitioner’s advocate on 9th April, 1970. The order passed by him on 9th April, 1970 is not a preliminary order. It is only a formal expression of his having formed the opinion that action had to be taken under section 107. The allegations in the petition, dated 23rd March, 1970 and the matters mentioned in the police report furnished enough materials for the Magistrate to start proceedings under section 107. A Magistrate passing a preliminary order under section 112 is not bound to disclose the source of his information. He is expected to state in it only the substance of the information he received and in the present case that has been incorporated in the preliminary order. The purpose of setting out the substance of the information is to give notice to the person against whom action is proposed to be taken as to what exactly are the allegations against him for which he has to answer. The purpose of setting out the substance of the information is to give notice to the person against whom action is proposed to be taken as to what exactly are the allegations against him for which he has to answer. In Kalia Goundou v. Emperor1 Krishnan Pandalai, J. said that what was expected to be stated in the preliminary order under section 112 was an abstract of the facts disclosed in the information. In In re Muthuswami2, a Full Bench of the Madras High Court said that if by that expression “abstract of the facts Krishnan Pandalai J., meant something more than the substance the Full Bench could not agree with it. Details as in a charge drawn up during trial are not what is contemplated by the substance of an information. The substance of an information is different from the abstract of the facts contained in the information. It is the essence of the information that is contemplated. Sources of information and the materials with the help of which the allegations are proposed to be substantiated are not comprehended in the expression”substance of the information. No doubt a preliminary order passed under section 112 is a Judicial Act. But being in a proceeding to prevent breach of the peace or disturbance of public tranquillity the Magistrate has to be left free with a wide discretion in its exercise. The section does not place on him any restraint regarding the nature or quality or quantity of the information on the basis of which action can be taken. He can take action on any information, written or oral, or direct or indirect, provided he has formed an opinion before he starts the proceedings that there was sufficient ground for starting the proceedings and that implies that he should not act in haste or in an arbitrary manner. In the present case besides calling for the police report the Magistrate heard the respondent and the petitioner’s advocate also about the matter. All the contentions raised on behalf of the petitioner are devoid of merit. Hence this revision petition is dismissed. M.C.M. ------ Revision dismissed.