S. Annamalai v. The Tahsildar and Executive Magistrate
2003-12-02
M.THANIKACHALAM
body2003
DigiLaw.ai
Judgment :- This order shall dispose of the above petitions. 2. In the petitions, though the petitioners are different, the respondent is one and the same and the facts involved in all the cases are, more or less one and the same. For convenient, without mentioning the petitioners individually in this judgment, they are described only as petitioners, and respondent. 3. The respondent, Tahsildar and Executive Magistrate, Egmore-Nungambakkam Taluk has initiated proceedings under Section 107 Cr.P.C., as if the petitioners are likely to commit a breach of peace or disturb the public tranquility or involve in any wrongful Act, which may result not only the breach of peace, but also disturb the public tranquility. Conceiving such an opinion, the respondent had issued summons, to the petitioners dated 11.11.2002 for their appearance on 14.11.2002. The summons issued by the respondent alone are questioned, in all the petitions, praying to quash the consequential proceedings also. 4. According to the petitioners, in the beginning of the year 2002, two muslim youngsters took steps to construct a mosque in their area, which was prevented and stopped at their instance. It is also the case of the petitioners that the muslim youths have preferred a false complaint against the office bearers of the Residents' Welfare Association and others and the same is pending in the police station. The position being so, according to the petitioners, to their surprise, summons were issued asking them to appear for the hearing on 14.11.2002, which is not maintainable, since the summons issued do not disclose any application of mind on the part of the respondent, since he failed to follow the provisions under Section 114 Cr.P.C., while issuing summons. It is further pointed out, that the respondent has not proved the charges, to be answered by the petitioners while issuing summons and therefore, since the summons are against law, the summons and the consequential proceedings contemplated thereunder, are to be quashed. These petitions are generally opposed. 5. The learned counsel for the petitioners submits that the provisions contemplated under Chapter VIII of the Code of Criminal Procedure Code are not at all complied with by the Executive Magistrate and therefore, the security proceedings initiated against the petitioners, by the issue of summons, should be quashed.
These petitions are generally opposed. 5. The learned counsel for the petitioners submits that the provisions contemplated under Chapter VIII of the Code of Criminal Procedure Code are not at all complied with by the Executive Magistrate and therefore, the security proceedings initiated against the petitioners, by the issue of summons, should be quashed. By going through the summons, I should say that the contention of the learned counsel for the petitioners, is well acceptable, since it is based on sound principles of law, for which there is no contra argument also by the learned Government Advocate. 6. Section 107 Cr.P.C. contemplates security for keeping the peace regarding the matter, which is not covered under Section 106 Cr.P.C. Section 111 of Cr.P.C., contemplates, when a Magistrate has begun action under Section 107 Cr.P.C., he should make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the terms for which it is to be in force and the number, character and class of sureties. The petitioners were not present at the time of initiating the proceedings under Section 107 Cr.P.C. and therefore, Sections 112 and 113 of Cr.P.C. are not applicable. Because of this reason alone, summons were issued under Section 114 of Cr.P.C., though it is not stated so, in the summons, for the appearance of all the petitioners to answer to a charge. 7. The legislators thought it fit, when summons are issued under Section 114 Cr.P.C. it should be accompanied by a copy of the order made under Section 111 Cr.P.C., then only the party, who was directed to answer the charge, could have knowledge of the same, for which purpose he was directed to execute a bond, etc. Therefore, it is mandatory on the part of the Magistrate, who had initiated proceedings under Section 107 Cr.P.C., to pass an order under Section 111 Cr.P.C., having come to the subjective satisfaction regarding the security for keeping the peace involved. The impart of Section 111 Cr.P.C. is, when a Magistrate acting under Sections 107, Section 108, Section 109 or Section 110, 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, etc.
The impart of Section 111 Cr.P.C. is, when a Magistrate acting under Sections 107, Section 108, Section 109 or Section 110, 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, etc. If such an order is not passed and accompanied with summons, as mandated under Section 114 Cr.P.C., then there is no chance for the person charged to answer the charges, which is not there, admittedly. Mere issuance of summons, which do not contain any particulars or any order as contemplated under Section 111 Cr.P.C., by the Executive Magistrate, in my considered opinion, is an illegal act committed, without following Section 111 as well as 114 of Cr.P.C. In the absence of any charge or an order under Section 111 Cr.P.C., the petitioners had no opportunity to answer the charge, followed by subsequent events viz., regarding the execution of bonds etc. Since the summons failed to satisfy the mandatory requirements of Section 114 Cr.P.C., the petitioners, could not be compelled to appear before the Executive Magistrate, to answer the alleged charge, in the absence of particulars and therefore, the proceedings initiated by the Executive Officer under Section 107 Cr.P.C. is prima facie illegal, and even if it is allowed to continue or to proceed further, it would not serve any purpose, in the sense, culminating into an effective order, legally. Therefore, the petitioners need not be compelled to appear before the Magistrate, to face the prosecution under Section 107 Cr.P.C., which is not initiated as per the mandates and guidelines of the Cr.P.C. Hence, accepting the submission of the learned counsel for the petitioners, I conclude that the summons and the connected proceedings have to be quashed, which are pending on the file of the respondent in No.B3/32424/02 dated 11.11.2002. In the result all the petitions are allowed and the proceedings in No.B3/32424/02 dated 11.11.2002 on the file of the respondent, are quashed. Connected Crl.M.Ps. are closed.