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Judgment
M.M. Sundresh, J.—The Petitioners herein have come forward to filethis petition to quash the proceedings of the 1st Respondent dated 23.05.2011 passed u/s 107 Code of Criminal Procedure
It is the case of the Petitioners that againstthe ''A'' party to whom also proceedings u/s 107 Code of Criminal Procedure has been initiated, a suit has been filed by the1st Petitioner in O.S. No. 73 of 2009 on the file of the IIIAdditional Sub-Court, Madurai. The said suit has alreadybeen decreed on 31.01.2011. Alleging that the ''A'' partyand their men are disturbing the possession and enjoymentof the suit property of the Petitioners, a compliant wasgiven by them. Instead of taking appropriate action, the 1st Respondent has taken action u/s 107 Code of Criminal Procedure against the Petitioners and hence, the present petitionhas been filed.
The learned Counsel for the Petitioners submitted that the order impugned is liable to be set aside since there is No. application of mind. The impugned order does not say anything about the necessity for directing the Petitioners to execute a bond. There is nothing to indicate in the order impugned, regarding the information received. The learned Counsel has relied upona judgment of this Hon''ble Court in Somasundaram and Ors. v. The Revenue Divisional Officer, Dharapuram and Anr. 2002 MLJ (Crl.) 155.
The learned Government Advocate (Crl.side) on instruction submitted that the ''A'' party has attended enquiry and the Petitioners being ''B'' party have not attended enquiry.
Considering the very same issue, this Hon''bleCourt in Somasundaram and Ors. v. The Revenue Divisional Officer, Dharapuram and Anr. 2002 MLJ(Crl.) 155 has held as follows:
An order passed u/s 111, Code of Criminal Procedure 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 on 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 u/s 170, Code of Criminal Procedure for preservation of peace and order. In the present case, as already seen, the order spassed u/s 111 Code of Criminal Procedure do not set forth the substance of information received by the Sub-Divisional Magistrate and the nature of the case the Petitioners have to meet before entering appearance. Lack of information in the show cause order has caused prejudice to the Petitioners, since they were not in aposition to challenge the same.
The Sub-Divisional Magistrate has to satisfy himself about the need to issue a show cause order and the order must reflect the application of mind by the Magistrate to the facts placed before him. The impugned orders do not indicate application of mind by the Magistrate and they do not satisfy the doubletest much less any one of them and hence they are liable to be quashed.
Considering the ratio laid down by this Court and applying the same to the facts on hand, this Court is of the view that the order impugned is liable to be set aside and accordingly the same is set aside. The Criminal original Petition is allowed. Consequently, connected M. Ps. are closed.