Kasapparai and Others vs State

M.N. Moorthy, J.—This petition is filed to quash S. 107, Crl.P.C, proceedings initiated in M.C.No.2 of 1977 on the file of the Sub-

Divisional Magistrate and Sub Collector, Saidapet, Chingleput District. The Preliminary order under S. 107, Crl.P.C., reads as follows:

Whereas it has been reported by the petitioner that there is likelihood of breach of peace in Thiruchinankuppam, there is a strong feeling between

the two groups and they had actually disturbed the public tranquility and create breach of peace in that Kuppam situated within the local limit of my

jurisdiction:

I, Thiru R. Gopalan, I.A.S., Sub-Divisional Magistrate and Sub-Collector, Saidapet do hereby require the above respondents to appear before

me in person or by Pleader at 11-00 A.M.

On 7th April. 1979 at the Sub-Collector''s Office Saidapet and put in written statement for your claims as to why orders should not be passed to

execute a bond for keeping peace for a period of one year.

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 S. 111, Crl.P.C., 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 relied on a case reported in Manickam v. Emperor 1941 M.W.N. (Crl.) 60, 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.

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 S. 107,

Crl.P.C. In support of his contention, Prabhakar v. Shankar 1971 Cri.L.J. 602, was relied on by the learned counsel wherein it is held:

A plain reading of S. 107(1), Crl.P.C., makes it abundantly clear that it is absolutely necessary that the Magistrates should 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 S. 107, Crl.P.C. In the absence of such opinion by a Magistrate proceedings under S. 107, Crl.P.C., cannot be instituted.

In the present case the order in question does not contain any such material. It does not even show that the Magistrate has considered the facts

contained in the report alleged by the Inspector of Police, Tiruvottiyur. There is nothing to show from the order that there are sufficient grounds for

proceeding under S. 107 , Crl.P.C. The order should contain these facts is also the ruling of our High Court reported in K.V. Shanmugam v. State

1978 L.W. (Crl.) 130

Both the points raised by the learned counsel for the petitioners are well founded. The proceedings pending on the file of the Sub-Divisional

Magistrate and Sub-Collector, Saidapet, in M.C.No.2 of 1979 deserve to be quashed and are hereby quashed.