Dismissed
L.R.a.Soundararajan v. the Sub Divisional Magistrate/
Madras HCCRL OP(MD)/11392/2013
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Only this procedure is obsolete.
What the court decided
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:06.08.2013
CORAM
THE HONOURABLE Ms. JUSTICE R.MALA Crl.O.P.(MD)NO.11392 of 2013 and M.P.(MD)No.1 & 2 of 2013
1.L.R.A.Soundararajan
2.K.S.Arumugam
3.S.Paulraj 4.A.Murugan 5.A.Sureshkumar 6.S.Senthil Kumar 7.S.Selvam 8.T.Magesh 9.N.Karthik 10.A.Ranjith ... Petitioners
Versus
1.The Sub Divisional Magistrate/ The Revenue Divisional Officer, Tirunelveli District.
2.The Inspector of Police, Serthamaram Police Station, Tirunelveli District. ... Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records pertaining to the Impugned Order in M.C.No.76/2013 dated 25.06.2013 on the file of the Respondent No.1 and quash the same as illegal.
For Petitioner : Mr.T.Lajapathi Roy For Respondents: Mr.P.Kandasamy,
Government Advocate (Crl. Side)
O R D E R
The petitioner has come forward with this application for challenging the order passed by the first respondent on 25.06.2013.
2.The learned Counsel for the petitioner would submit that the impugned order passed by the first respondent itself is illegal and the first respondent while passing such an order he must aware how he has received the information and he must have given a reason how there is a disturbance of public peace and tranquility, but the order has not contained such averments hence, it is illegal and liable to be set aside. He further submitted that the Church festival has been alleged to be conducted from 20.06.2013 to 29.06.2013 but the https://hcservices.ecourts.gov.in/hcservices/ festival was held peacefully and hence, he prays for setting aside the order.
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“The learned counsel appearing for the petitioners raised two points. First he contended, the preliminary order passed in this instant case does not satisfy the requirements of Section 111, Criminal Procedure Code, in that it failed to set 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 or sureties (if any) required. In support of his contention, the learned counsel raised on a case reported in Manickam V. Emperor wherein it is held that the preliminary order should set forth every circumstance of the charge against the accused, to note 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. Where no such particulars are given in the preliminary order, it is not lawful for a Magistrate to order the execution of a surety bond.
3.The second point raised by the learned Counsel for the petitioners is there is nothing in the preliminary order passed by the Magistrate to show that the Magistrate was of the opinion that the facts give rise to the grounds, which are sufficient in his opinion for proceeding under Section 107, Criminal Procedure Code. In support of his contention, Prabhakar V. Shankar, was relied on by the learned Counsel wherein it is held:
“A plain reading of Section 107(1), Criminal https://hcservices.ecourts.gov.in/hcservices/ Procedure Code, makes it abundantly clear that it is absolutely necessary that the Magistrates should
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consider the facts contained in the information received by them and form an opinion that the facts give rise to grounds which are sufficient in their opinion for proceeding under Section 107, Criminal Procedure Code. In the absence of such opinion by a Magistrate proceedings under Section 107, Criminal Procedure Code, cannot be instituted.”
and further it was also held in 2006(3) CTC 792 in which Paragraph No.3 reads as follows:
“The learned counsel for the petitioners submitted that the notice issued suffered from illegality and the substance of the information received is not set forth in the notice. No information has been given to substantiate that the learned Magistrate has applied his mind. Further, an illegality has been committed by clubbing both the A-party and B-party.
It has been held in Somasundaram and 10 others v. The Revenue Divisional Officer, Dharapuram and another, 2002 (1)CTC 72. The relevant portion of the said decision is extracted below:
“6.An order passed under Section 111 of Cr.P.C. has to satisfy a double test:
(1)It must set forth the substance of the information received as well as the amount of the bond to be executed, the terms of which it is to be in force and the number, character and class of sureties (if any required).
(2)Besides, the order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under Section 107 of Cr.P.C. for preservation of peace and order.”
5.Considering the rival submissions made on either side and on perusal of records, it shows that on the basis of the complaint registered by the Inspector of Police in Cr.No.163 of 2013 under Section 107 Cr.P.C., on 20.06.2013 and this order has been passed on 25.06.2013 and on perusal of the order it shows that there was a festival in Christian church from 20.06.2013 to 29.06.2013 and so they apprehended that there will be a religious fight between both the religious people and it will cause disturbance for public peace and tranquility, but there is no averments has been made how he got the information, further in that order he has not stated anything about how he came to the conclusion that there will be a disturb in public peace and tranquility, so I am of the view that the order passed by the first respondent is unsustainable for failing to set forth the substance of information he received and not recorded his https://hcservices.ecourts.gov.in/hcservices/ subjective satisfaction and hence, the order itself is illegal and it is liable to the set aside. Accordingly, this Criminal Original
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Petition is allowed. Consequently, the connected miscellaneous petitions are also closed.
Sd/-
Deputy Registrar(J)
/True Copy/
Assistant Registrar
To
The Revenue Divisional Officer,
3.The Additional Public Prosecutor,
+1CC TO Mr.T.Lajapathi Roy, Advocate, Sr.No.40028
Crl.O.P.(MD)NO.11392 of 2013
06.08.2013
am
SMA/22/08/2013/5C/4P
Colour shows how this judgement treated each authority
Manickam V. EmperorReferred¶20
Manickam V. Emperor
Prabhakar V. ShankarReferred¶22
Prabhakar V. Shankar
Somasundaram and 10 othersReferred¶27
Somasundaram and 10 others v. The Revenue Divisional Officer, Dharapuram and another
2 provisions across 1 enactments
L.R.A.Soundararajan
K.S.Arumugam
The Sub Divisional Magistrate
The Inspector of Police
R.Mala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court