In Re: Muthuswami Chettiar and Others

Alfred Henry Lionel Leach, C.J.—In the village of Negamam in the Coimbatore District there are two factions and there is strong enmity

between them. Their enmity dates back to the Legislative Assembly elections held in 1934, if not earlier. At the present time the factions are

opposing one another with regard to the management of an institution known as the Lakshmi Vilas and Dravyasagaya Nidhi. Limited and the

management of a temple known as the Kannikaparameswari temple. On the 23rd September, 1938, the Sub-Divisional Magistrate of Pollachi

served notice on twelve persons u/s 112 of the Code of Criminal Procedure, calling upon them to show cause why they should not be ordered to

execute security bonds u/s 107. According to an affidavit of the petitioner in Crl. R.C. No. 245 of 1939 filed in the present proceedings rioting had

taken place on that day. The accusations against these twelve persons, who have been referred to as the counter-petitioners, are set out in

paragraph 3 of the petitioner''s affidavit which reads as follows:

The counter-petitioners 1 to 12 noted in column 4 who are residents within the jurisdiction of the Sub-Divisional Magistrate, Pollachi, and who are

members, partisans and hirelings of a faction of which Pillaya Chetty of Negamam is the leader, have been systematically committing acts of

rowdyism, assault, trespass and intimidation on members of the opposite party and on 23rd September, 1938, all of them were found armed with

weapons for a similar purpose endangering public peace. The feelings between the parties are very much strained and they are likely to come to a

clash at any moment resulting in a breach of peace disturbing the public tranquillity seriously. Hence it is requested that the counter-petitioners may

be ordered to execute a bond with sureties for keeping peace for a period of one year. Pending termination of the proceedings all the counter-

petitioners may be ordered to execute interim bonds as breach of peace is likely to occur at any time.

The Magistrate considered that the information was of such a nature that he was justified in ordering the counter-petitioners to execute interim

security bonds. These bonds were executed on the 14th October, 1938. On the 5th February, 1939, the police laid information against the

petitioner, and it is obvious from the notice which was subsequently served upon him u/s 112 that the information was to the effect that he was also

a leader of the faction of which the counter-petitioners were said to be members and was giving them active support. At the same time information

was laid against Pillaya Chetti, the person previously referred as the leader of the faction and one Mylsami Goundan. The Magistrate was satisfied

that there was a likelihood of a breach of the peace occurring and issued notice u/s 112 against the petitioner and the two other persons. In this

notice they were referred to as counter-petitioners 13, 14 and 15 respectively. The petitioner says that the notice served upon him does not

comply with the requirements of the section and that the proceedings which have been instituted against him have been unlawfully instituted. The

notice reads as follows:

Whereas it has been made to appear to me by credible information that there are two factions in the village of Negamam led by Annal Chetti on

the one side and Muthuswami Chetti (petitioner) and Pillaya Chetti on the other side;

That there is misunderstanding between Annal Chetti and counter-petitioners. 13 and 14 (Muthuswami Chetti and Pillaya Chetti) regarding the

management of Lakshmi Vilas and Dravyasagaya Nidhi, Limited and owing to the Delhi Assembly elections in 1934 and also in respect of the

management of the Kannikaparameswari temple;

That there is dispute and civil litigation between the two factions regarding possession of the temple lands, that consequently the feelings between

the two parties have become strained and that there is likelihood of a breach of 1Jie peace in the village, that counter-petitioners 13 to 15

(petitioners herein and the counter-petitioners 14 and 15) are giving active support to counter-petitioners 1 to 12 to further their nefarious activities

in the village;

That counter-petitioner 15 trespassed into the house of Kamatchi Chetti on the 23rd September, 1938 and created trouble;

That counter-petitioners 1 to 12 who were responsible for the disturbance in the village on 23rd September, 1938, had come there at the instance

of counter-petitioner 15 to help counter-petitioner 14 and his son and to retaliate the attempted attack on them on 21st September, 1938;

That you are likely to commit a serious breach of the peace and disturb the public tranquillity at the village of Negamam;

You are hereby required u/s 107(1) of the Criminal Procedure Code to appear before this Court at 11 A.M. on 8th March, 1939, at Pollachi and

to show cause why you should not be ordered to execute bonds for Rs. 1,000 each with two sureties each in a like sum to keep the peace for one

year.

As pointed out by our learned brother Patanjali Sastri, J., in referring the order, the petitioner''s case is that a notice u/s 107 of the Code of

Criminal Procedure must relate to a breach of the peace or wrongful act in contemplation at the time when information is given to the Magistrate,

and that a notice which does not go to this length is necessarily void. The Public Prosecutor challenges this contention and says that if the section

were so interpreted it would impair its practical usefulness.

Section 107(1) states:

Whenever a Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is informed that any person is

likely to commit a breach of the peace or disturb the public tranquillity, the Magistrate if, in his opinion, there is sufficient ground for proceeding,

may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without surety,

for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix.

The requirements of this sub-section are therefore:-(1) There must be information that a person is likely to commit a breach of the peace or

disturb the public tranquillity or do a wrongful act which may probably cause a breach of the peace or disturb the public tranquillity; (2) the

Magistrate, if he is of the opinion that there is sufficient ground for requiring the person against whom the information is laid to show cause why he

should not be ordered to execute a security bond for keeping the peace, should issue notice to him; (3) and in calling upon the person to show

cause the Magistrate must proceed ""in manner hereinafter provided"" which means that he must issue a notice in accordance with the requirements

of Section 112. That section says that when a Magistrate deems it necessary to require a person to show cause he shall make an order in writing

setting 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 of sureties (if any) required. As will be shown presently, Section 112 has on occasions been misread and further

particulars than those required by the section have been insisted upon. All that the section requires is that the substance of the information shall be

set forth and if this is done and the other requirements of the section are complied with the notice is a valid one.

Section 117 provides the procedure to be followed when a notice has been issued u/s 112. When an order u/s 112 has been read or explained

u/s 113 to a person present in Court, or when a person appears or is brought before a Magistrate in compliance with, or in execution of a

summons or warrant issued u/s 114 the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken and

to take such further evidence as may appear necessary. The enquiry shall be made as nearly as may be practicable where the order requires

security for keeping the peace, in the manner prescribed for conducting trials and recording evidence in summons cases. Therefore, before a

person on whom a notice has been served u/s 112 can be required to enter into a security bond u/s 107 the matter must be fully investigated by the

Magistrate.

The cases on which the petitioner relies in support of his contention that the notice must set forth the particular breach of the peace or wrongful

act in contemplation are High Court Proceedings No. 1952 dated 29th August, 1876 (1876) 2 Weir 49, and the decisions in Nagi Reddi Konda

Reddi v. Emperor I.L.R.(1917) 41 Mad. 246, Maruthapalli Gounder v. Emperor, Santhanaramaswami v. Emperor (1937) M.W.N. 48 , and In

Re: Kalia Goundan and Others, . In the High Court Proceedings No. 1952 dated 29th August, 1876, complaints were made against 21 persons

that they were constantly creating disturbances in bazars and they were called upon to show cause why they should not be bound over to keep the

peace. The Court expressed the opinion ""that the act of which information is given and in respect of which security is required must be an act which

is shown to be in contemplation at the time the information is given and not merely one a repitition of which may be apprehended from past

misconduct of the kind without anything further"". This case was under the old Code, but the language of Sections 107 and 112 was materially the

same. While we agree that there must be something more than the past misconduct of the person proceeded against to justify a notice being served

upon him we are unable to agree that the Code requires the information to show the particular act which is in contemplation at the time. The

Magistrate must be satisfied that there is a likelihood of a breach of the peace. What will satisfy him must depend on the particular facts of the

case.

In Nagi Reddi Konda Reddi v. Emperor I.L.R.(1917) 41 Mad. 246, Abdur Rahim and Napier, JJ., considered that proceedings u/s 107 of the

Criminal Procedure Code should be quashed if the notice issued did not give particulars of the persons threatened and when the apprehension of a

breach of the peace arose. There the notice stated that:

The seven persons headed by Nagi Reddi Konda Reddi the first accused, a rich and influential resident of Kaluvoy, arid others are addicted to

crimes of violence involving a breach of the peace and threatened injury to the lives and property of several persons and there is an imminent

danger of a breach of the peace.

The decision in a particular case must depend on the facts of the case and we are unable to agree that the absence of such particulars as these

would necessarily vitiate the notice. In the first instance the particulars may not have been given to the Magistrate, but nevertheless he may have

been convinced that there was a likelihood of a breach of the peace, in which case it was his duty to issue the notice. The passing of an order

requiring security will, of course, depend on the nature of the evidence given at the subsequent inquiry.

In Maruthapalli Gounder v. Emperor (1937) M.W.N. 48, Pandrang Row, J., accepted the proposition that it was necessary to state in the

notice the likelihood of the commission in the near future of a particular breach of the peace or a wrongful act likely to lead to a breach of the

peace. In Santhanaramaswami v. Emperor (1937) M.W.N. 885, King, J, considered that the notice in that case was wrong because neither time,

nor place, nor any indication of the identity of the persons alleged to have been threatened had been given but, here the learned Judge Was insisting

upon something which the section does not insist upon. In Kumarappa Chettiar v. Emperor (1937) M.W.N. 1072, King, J., rightly observed that

in order to justify an order u/s 107 it must be proved that the persons concerned are likely to break the peace. In Kalia Goundan, In Re: Kalia

Goundan and Others, , Krishnan Pandalai, J., considered that Section 112 requires the Magistrate to give an ""abstract of the facts"" upon which he

charges the persons proceeded against with being likely to commit a breach of the peace. If by an abstract is meant something more than the

substance of the information we do not agree. The learned judge did not regard the notice in that case as being sufficient but this opinion is certainly

to be doubted. It is, however, not necessary for the purposes of this case to discuss the facts of that case as the judgment does not appear to go

beyond the other judgments to which reference has been made.

There is no doubt that action taken u/s 112 constitutes a judicial act and therefore the Magistrate should not act arbitrarily. There must be

information of a nature which convinces him that there is a likelihood of a breach of the peace. It is impossible to formulate a hard and fast rule with

regard to the nature of the information on which a Magistrate should act. What is reasonably sufficient to satisfy a Magistrate must depend on the

particular situation. The person who gives the information may not be in a position to give details, but the source of the information may be

sufficient to convince the Magistrate that a breach of the peace is likely, and if he is convinced the law requires him to take action. We consider

that Knox, J., aptly stated the position in Jaguji Rai v. Emperor (1918) 16 A.L.J. 567, when he said:

As I read this section, there may be cases in which a Magistrate of the first class is merely informed that a person is likely to disturb the public

tranquillity without any information being given as to his intent to do wrongful acts. The Magistrate is responsible for the peace of the district. He

acts upon this information and lie is required to set forth in writing the substance of the information received In this case we are not told that the

Magistrate has received any information of definite acts intended. Apparently from the information he received he was satisfied that the persons

concerning whom the information had been given were likely to commit some act which might occas on a breach of the peace. The reason given

for this probability was that they were on terms of enmity with each other. Where the Magistrate can go into further particulars, he should certainly

go into them. But it may well be that all the information he receives is that there will be a breach of the public peace, and if he considers that

information to come from a reliable source, he has jurisdiction to make the order required by Section 112.

The High Court has undoubtedly power to quash proceedings where the notice issued does not comply with the requirements of Section 112,

but before doing so it must be satisfied that there has been a failure to comply. It must be remembered that the issue of the notice is merely a

preliminary step and no order can be passed u/s 107 unless the inquiry which follows the issue of the notice shows that the laying of the information

was justified. The High Court can always interfere when the inquiry has not been held in accordance with the law or a wrong conclusion has been

arrived at. Far too much stress has been laid in the past on the wording of the notice and too little regard paid to the safeguards provided by the

subsequent procedure.

In the course of the arguments advanced on behalf of the petitioner several cases have been quoted which relate to action taken u/s 110. There

are conflicting decisions on the question of what the notice in such a case should contain. It is, however, not necessary for us to discuss the cases

relating to Section 110. Section 107 is a self-contained section and the Court is not required for the purposes of this petition to travel beyond the

cases which have reference to that section.

Now, applying the provisions of Section 112 to the notice issued in this case what is the position? The notice states that the petitioner is a

leader of one of the rival factions in the village, that the feelings between the factions have become strained, that there is a likelihood of a breach of

the peace in the village and that the petitioner is giving active support to the members of his faction to further their nefarious activities in the village.

The nefarious activities referred to are known to the petitioner who has set them out in the affidavit which he has sworn and filed in support of his

petition asking for the quashing of the proceedings. It is impossible in these circumstances to say with reason that the substance of the information

received by the Magistrate has not been set out and it is also impossible to say with Reason that there is no case shown for inquiry u/s 107. We

regard this notice as complying with the requirements of the section, and therefore there is no foundation for the application to this Court to

exercise its revisional powers. It follows that the petition must be dismissed and the Magistrate will proceed with the inquiry in accordance with

law.