Allowed

Ajees Robinin, v. Mr.S.Senthil Kumar

Madras HC4 Mar 2015CRL OP(MD)/4029/2013

Case brief

AI extract

What is this about?

Madurai Bench quashed a Sub-Divisional Magistrate's order under Section 144 Cr.P.C. for failing to assess the truth of information, lack of independent inquiry, non-speaking nature, and non-compliance with mandatory statutory requirements.

What did the court decide?

The impugned order dated 10.1.2013 passed by the Sub-Divisional Magistrate cum Revenue Divisional Officer was set aside and quashed.

Ajees Robinin, Vs Mr.S.Senthil Kumar — Civil Procedure and Limitation | Madras HC (2015)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 4.3.2015 CORAM:

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THE HONOURABLE Mr.JUSTICE V.S.RAVI Crl.O.P.(MD)No.4029 of 2013 and M.P (MD) No.2 of 2013

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1.Ajees Robinin

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2.Alwin Dhas 3.Rosan @ Ajin 4.Lazar 5.Stephen

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... Petitioners

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Vs.

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1.Mr.S.Senthil Kumar Sub-Inspector of Police, Marthandam Police Station, Kanyakumari District.

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2.The Revenue Divisional Officer cum Sub-Divisional Magistrate Padmanabhapuram, Kanyakumari District.

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... Respondents

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PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records and to quash the order passed in Na.Ka.A2/M.C. 4/2012 dated 10.1.2013 on the file of the Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram.

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For Petitioners : Mr.S.C.Herold Singh For Respondents : Mr.P.Kannithevan Government Advocate (Crl. Side)

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CAV on 2.3.2015 Pronounced on 4.3.2015

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O R D E R

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This Criminal Original Petition has been filed by the petitioners to quash the proceedings of the learned SubDivisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram, second respondent herein, in Na.Ka.A2/M.C. 4/2012 dated 10.1.2013.

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The petitioners have submitted that the order passed by the second respondent is against law and the same is unsustainable in https://hcservices.ecourts.gov.in/hcservices/ law. It is further submitted by the petitioners that the second respondent has passed the impugned order merely based only on police report of the first respondent. The allegations levelled

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against the petitioners in the impugned order are vague, bald and not true and the second respondent has not ascertained the facts independently nor conducted any preliminary inquiry. The second respondent has failed to note that there is no sufficient ground made out for taking proceedings under Section 107 Cr.P.C. Hence the petitioners have requested to quash the impugned order.

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3.The pertinent point that arises for consideration in this Criminal Original petition is as follows:

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“Whether the petitioners are entitled to get an order to quash the proceedings initiated by the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram in Na.Ka.A2/M.C. 4/2012 dated 10.1.2013 for the reasons stated in the petition?”

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Along with Criminal Original Petition, the petitioners have filed the impugned order dated 10.1.2013 passed in Na.Ka.A2/M.C. 4/2012 by the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram . It is specifically submitted on behalf of the petitioners that the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram has not assessed the truth of the information and the need for taking action under Section 107 Cr.P.C for preservation of peace while passing the impugned order. Further, it is pointed out on behalf of the petitioners herein that the impugned order does not indicate the application of mind by the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram and the need for issuance of the said impugned order and also the impugned order is not in the correct format nor to the compliance of the mandatory requirements of law. Further, the petitioners have submitted that there is no disturbance to peace or public tranquility at the petitioners instance.

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In this connection, it is useful to refer to the following citations:i). Somasundaram v. The Revenue Divisional Officer (2002 (1) CTC 72)

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Code of Criminal Procedure, 1973, Sections 107, 111, 482 – First Information Report – Before proceeding under Section 111, it has to satisfy double test, namely notice must furnish all information which are laid against person and before issuing Notice under Section 107- Orders passed do not set forth substance of information recorded by Sub-Divisional Magistrate and nature of case https://hcservices.ecourts.gov.in/hcservices/ petitioner has to meet before entering appearance - Sub-Divisional Magistrate has to satisfy himself about need to issue Show Cause Order and Order must

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disclose application of mind by Magistrate to facts placed before him – Magistrate must assess truth of information and need for taking action for preservation of peace.

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ii). Mohan and others v. State by Inspector of Police,

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Pasupathypalayam P.S and another (2003) M.L.J.(Cri) 558)

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“A careful perusal of the order passed by the Revenue Divisional Officer -cum-Sub-Divisional Magistrate, Karur dated 8.11.2002 made in M.C.No.5 of 2002 on the file of the second respondent would clearly indicate that the order is not in the correct format nor to the requirements of Sec. 111, Cr.P.C and therefore, since there is no compliance of such mandatory requirements of law stipulated under Section 111, Cr.P.C the order becomes liable only to be set aside and the same is decided accordingly.

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iii). P.R.Senniappan v. Revenue Divisional Officer, Coimbatore (2005 M.L.J. (Cri) 108)

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“3. The order is an one sentence order without conveying any fact or circumstance or without any discussion so as to arrive at the decision to issue an order of this sort and it is a mute order without conveying anything relevant, particularly, for consideration of the authority and application of mind and therefore could be branded only as a non-speaking order, which cannot be passed in law.”

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iv) Palani v. The Inspector of Police (2006 (3) CTC 792)”

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“Code of Criminal Procedure, 1973, Sections 107 & 111 – Duty of Executive Magistrate – Substance of information received is not set forth in notice – Order must also reflect that Magistrate has assessed truth of information – and need for taking action for preservation of peace and order – Joint enquiry can be held only in respect of members or association of same group and not against members of rival group – Shortage of information to substantiate application of mind would render order as invalid.”

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In the present case also, on a careful perusal of the materials on record, it is found that the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram has not https://hcservices.ecourts.gov.in/hcservices/ assessed the truth of the information and the need for taking action and also the Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram has not passed the impugned

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order in the correct format nor to the compliance of mandatory requirements of law, so as to arrive at the decision to issue the said impugned order. In the absence of the said opinion with regard to breach of peace or to disturb tranquility, the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram ought not to have issued the impugned order. Further, the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram should not merely refer about the complaint. Further, it is seen from the impugned order that the Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram has not made assessment of material facts independently before issuing the impugned order. Further on a careful scrutiny of the entire records, it is found that the impugned order passed by the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram is liable to be quashed for the reasons stated in the present criminal original petition.

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In the result, the Criminal Original petition is allowed and the impugned order passed by the learned Sub-Divisional Magistrate cum Revenue Divisional Officer, Padmanabhapuram shall stand quashed. Connected M.P (MD) No.2 of 2013 is closed.

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Sd/-

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Assistant Registrar(Writs)

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/True Copy/

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Sub Assistant Registrar

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1.Mr.S.Senthil Kumar Sub-Inspector of Police, Marthandam Police Station, Kanyakumari District.

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