Chinnaswamy and Others vs State

Natarajan, J.

The counter-petitioners in M.C. No. 59 of 1981 on the file of the Executive First class Magistrate-cum-Sub-Collector, Sankari, have filed this

petition under S. 482, Cr.P.C. for quashing the proceedings against them, in the abovesaid case.

In respect of two hands bearing survey No. 115/2 of an extend of 2.24 acres and 116 of an extent of 2.52 acres in Seetharamapalayam village

in Tiruchengode Taluk there were disputes between the first petitioner and his group of people, on the one hand, and one Rengasami Naidu and his

group of people, on the other. The first petitioner, who was appointed as the sole non-hereditary trustee of Arulmigu Vinayagar temple of

Sengodampalayam and Arulmigu Mariamman temple of Kailasampalayam in Tiruchengode Taluk claimed that the lands in the two survey fields

belong to the temple Rengasami Naidu and some others, who are Poojaris of the temple have been contending that the lands were their patta lands

and that they are entitled to parcel out the lands into plots and sell them. The dispute led to Rengasami Naidu and some others filing a suit O.S.

294 of 1981 on the file of the District Munsiff''s Court, Tiruchengode for declaration and injunction. The court did not grant any interim injunction

and hence the disputes regarding possession continued. That resulted in the police authorities laying information before the Executive First Class

Magistrate for action being taken against both parties under S. 145, Cr.P.C. Besides these proceedings, W.P. Nos. 2793 and 2794 of 1981 have

also been filed in connection with the disputes between the parties and those petitions are also pending. It is in that backdrop of matters, the

Inspector of Police, Tiruchengode laid information before the Executive First Class Magistrate setting out instances of the unlawful activities of the

petitioners and praying the Magistrate to take proceedings under S. 107, Cr.P.C. and enquire the petitioners and order them to execute bonds for

maintenance of peace and order. The Inspector of Police has stated in his report that the petitioners have prevented a milk-vendor from supplying

milk to three persons, viz., Veerasami Naidu, Krishnaswami Naidu and Ellappan, that they also prevented masons and workers from completing

the house being built by Veerasami Naidu, that the counter-petitioners suddenly arranged for a pongal pooja in the disputed land and created a

tense situation, that they proclaimed by beat of tom-tom that the villagers should not purchase articles from the shops of Naidus in the village, that

they prevented the dead body of one Manickam being buried in the common grave-yard and created a tense situation, that they laos prevented

people from going to the land of Veerasami Naidu for digging a well, that they beat Veerasami Naidu, Subramaniam and one Sasikala and caused

injuries to them, that on account of the unlawful activities of the petitioners, the situation was grave and tense in the village and that unless the

petitioners were summoned and enquired and directed to execute bonds for keeping the peace, there was imminent danger of breach of peace and

disturbance to public tranquillity.

In spite of the Inspector of Police having laid a detailed information, the learned Magistrate has not passed a considered order, but has merely

issued summons to the petitioners in the following terms :-

Whereas your attendance is necessary to answer to charge of u/s 107, Cr.P.C. and you are hereby required to appear in person before the

executive first Class Magistrate and Sub-Collector Sankari at 11 a.m. on 3-8-1981 herein fail not"".

On receipt of the summons, the petitioners have come to this court to seek, a quashing of the proceedings.

The petitioners assail the validity of the proceedings taken against them on the following grounds : (1) The Magistrate has no jurisdiction to issue

summons without complying with the provisions of S. 111, Cr.P.C. (2) On 3-8-1981 when some of the petitioners appeared before the

Magistrate, they were given a copy of the report sent by the Inspector to the Executive First Class Magistrate and though four instances are listed

in paras 5 to 8 of the report and in respect of one of them a case has been registered, no charge-sheet has been filed; (3) None of the materials

contained in the report sent by the Inspector can form the basis for initiating proceedings under S. 107, Cr.P.C. (4). The learned Magistrate has

not applied his mind to the report before initiating proceedings under S. 107, Cr.P.C., and issuing summons to the petitioners. (5) A list of 21

witnesses have been appended to the copy of the first information report but the gist of their evidence is not made mention of, and (6) The initiation

of proceeding son the basis of cases under investigation is illegal.

On account of one glaring error committed by the learned Magistrate, it is not necessary to go into the merits of the various contentions put forth

by the Magistrate. Before an order u/s 111, Cr.P.C., is issued, the Magistrate should consider the report of the police officer sent to him and if he

is satisfied about the truth of the information and about the need to take action under S. 107, Cr.P.C., for preservation of peace and public

tranquillity, then only he should pass an order under S. 111, Cr.P.C., and issue notices to the persons concerned. The order passed under S. 111,

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 term for which it is to be in force and the number, character and class of sureties (if any required). Besides the order must also reflect

that the Magistrate has assessed the truth of the information and the need for taking action under S. 107, Cr.P.C. for preservation of peace and

order and thereupon, he had passed the order. In this case, the Magistrate has not passed any preliminary order; but has merely issued summons

to the petitioners to attend this court. Even on the date of hearing, when they attended the court, they were not given a copy of the preliminary

order passed by the Magistrate, but have been merely given a copy of the report sent by the Inspector of Police. From that report, it cannot be

said that the Magistrate has accepted the truth of the statement made therein and that the Magistrate has reached the requisite subjective

satisfaction for initiating proceedings under S. 107, Cr.P.C. On account of this material error committed by the learned Magistrate, the petitioners

deserve to succeed in the petition. Consequently, the petition will stand allowed and the proceedings against them in M.C. No. 59 of 1981 on the

file of the Executive First Class Magistrate-cum-Sub-Collector, Sankari, will stand quashed.

If in spite of the passage of time, the feelings between the parties continue to be strained and there is likelihood of danger to peace and

tranquillity at the hands of the petitioners, the police authorities are at liberty to send a fresh report to the Magistrate and on receipt of such report,

it is open to the Magistrate to pass a fresh order against the petitioners in accordance with law.

Petition allowed.