K.P. Murugesan and Others vs State and Others

These ninety-seven petitioners who have been arrayed as members of the A-Party in M.C. No. 5 of 1981 on the file of the Sub-Divisional

Magistrate and Sub-Collector, Dindigul, have preferred this petition under S. 482 Cr.P.C., for quashing the proceedings before the Sub-Divisional

Magistrate. The first respondent is the State represented by the Inspector of Police, Keeranur, Palani taluk and respondents 2 to 8 are the

members of the B-Party.

On the basis of information laid before him by the Sub-Inspector of Police, Keeranur, the Sub-Divisional Magistrate deemed it fit to call upon

the members of the A-Party and the B-Party to show cause why they should not be bound over under S. 107 Cr.P.C., to keep the peace and be

of good behaviour for a period of one year. Consequently, the Magistrate passed a preliminary order under S. 111 Cr.P.C., and issued notices to

the members of both parties calling upon them to appear before him and show cause why they should not be called upon to execute bonds with

sureties for preserving public peace and tranquillity. On receipt of the preliminary order, the members of the A-Party have come to this Court to

have the proceedings quashed.

In the affidavit filed in support of the petition, various grounds of attack have been raised against the preliminary order passed by the Sub-

Divisional Magistrate. However, in view of the fact that learned counsel for the petitioners confined his argument only to one aspect of the order, it

is not necessary to refer to the other criticisms raised in the affidavit regarding the validity of the order.

The main ground taken by the petitioners to assail the impugned order is that the Sub-Divisional Magistrate has committed an illegality in

clubbing together the members of the A-Party and the B-Party and passing a common order and calling upon all of them to face a joint inquiry.

This question has been considered in a number of cases and it has been repeatedly laid down by this Court as well as many other High Courts in

the country that a joint inquiry of persons who are not associated together will not only be unfair and unjust to the parties, but will also not be legal.

Nevertheless, the Executive Magistrates seem to be totally ignorant of, callously indifferent to, this aspect of the matter. I am constrained to make

such an observation because of the numerous orders that are brought before this Court for being quashed for non-observance of this elementary

requirement of law. It is with reference to that fact, I feel compelled to refer to the catena of decisions on the subject and not because of the fact

that the law on the subject has not been laid down.

Section 107 Cr.P.C., lays down that whenever information is laid before an Executive Magistrate that any person is likely to commit breach of

the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion the breach of the peace or disturb the public

tranquillity and the Magistrate is of opinion that there is sufficient ground for proceeding, he may, in the manner provided under the Cr.P.C., require

the 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. In the event of the Magistrate concluding that there is sufficient ground for proceeding under S.

107 Cr.P.C., he has to follow the procedure laid down in S. 111. The Magistrate has to 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. The next Section which needs consideration is S. 116. This section lays down the procedure to be followed in the inquiry to be

held by the Magistrate. Sub-section (5) of S. 116 is relevant for consideration in this context. The sub-section reads as follows :-

Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as

the Magistrate shall think fit"".

From this it may be seen that it two or more persons have been associated together in the matter of an inquiry, they can be dealt with in the

same inquiry or under separate inquiries as the Magistrate shall think just. The words, ""persons associated together"" cannot take within their fold

members of two hostile parties. Perhaps members of the same party can be held as persons associated together. But, even in respect of them,

there need not always be a joint inquiry. There can either be a joint inquiry or separate inquiries according to the needs of the situation and the

propriety of holding a joint inquiry or separate inquiries. But, in so far as rivals are concerned or members of rival parties are concerned, there can

never be a joint inquiry. This is on account of the fact that a joint inquiry of rival parties will not only transgress the power given to Magistrates

under S. 116(5), but will also result in patent injustice to the parties. In Shanmughavel v. The State (Cri.M.P. No. 181 of 1977 of this Court Order

dt. 17th June 1977). I have observed as follows :-

One set of counter-petitioners or their men will have to figure as witnesses against the other set and vice-versa will be the case for the other set of

counter-petitioners and, such being the case, the Court can take judicial notice of the fact that a joint inquiry will undoubtedly result in prejudice to

both sets of counter-petitioners"".

Coming, now to the case-law on the subject, the uniform ratio laid down in a series of decisions is that the two opposing parties in a dispute

cannot be proceeded against under S. 107 Cr.P.C., in one proceeding. Vide : Kamal Narain Chowdry v. Emperor 1907 11 CWN 472,

Ganapathy Bhatta v. Emperor ILR (1908) Mad 276, Har Dutt Panda v. Emperor 1916 17 Cri LJ 165 : AIR 1916 All 338, Mohamad Ismail v.

The Crown AIR 1924 All 195 : 1924 Cri LJ 952, Kishore Ahir v. King-Emperor AIR 1926 Pat 32 : 1925 Cri LJ 1248, Rathinam Pillai v.

Emperor 1937 MWN 217 : 1938 Cri LJ 230 , Khetramohon Das and Others Vs. Emperor, , The Crown Vs. Laxminarayanlala and Others, ;

Krupasindhu Panigrahi Vs. Rex, , Athianna Gounder v. Nachiappan 1982 M LW 61, Kumarasamy Gounder v. State (Crl.M.P. No. 3669 of

1980 of this Court-Order dt. 29th September 1980), and Santhana Marian Nadar v. The State (Crl.M.P. No. 2359 of 1983-Order dt. 2nd April

1983).

However, in the last two cases, Ratnavel Pandian, J., after holding that the order of directing a joint inquiry against the members of two hostile

parties will vitiate the enquiry and quashing the order, gave liberty to the Executive Magistrate to pass separate orders afresh against the members

of the two parties and proceed with the inquiry if the situation warranted it. Thus, the settled position of law is that a Sub-Divisional or Executive

Magistrate will have no power to club together the members of two hostile groups and pass a joint order under S. 111 Cr.P.C., calling upon both

of them to face a joint inquiry before him. Because of the non-observance of this elementary mandate by the Executive Magistrates, a large number

of orders passed by the Magistrates get quashed by the High Court, with the result that security proceedings taken under S. 107 Cr.P.C., become

an abortive exercise for the authorities in charge of maintenance of law and order. It will therefore be advisable if the Government issues a special

circular to the Executive Magistrates to draw their attention to the correct procedure that has to be followed when they pass orders under S. 107

Cr.P.C., and hold enquiries under S. 116.

In the present case, the Sub-Divisional Magistrate has clubbed together the members of the A-Party and the B-Party and called upon them to

appear before him and face a joint inquiry. By reason of that illegality, the order stands vitiated and therefore deserves being quashed.

Consequently, this petition is allowed. Though the petitioners have asked for the quashing of the order in so far as they are concerned, the entire

order has to be struck down on account of the inherent defect in it. Therefore, as against the members of both the parties, the order will stand

quashed.

It is open to the Magistrate to pass fresh orders against the members of each party if the situation warrants it. However, as it is more than two

years since the order was passed, the situation is not likely to be tense any longer and therefore, there may not even be any need for a revival of

the proceedings.

Petition allowed.