R. Ramanathan vs The Sub Divisional Magistrate and Revenue Divisional Officer and The Inspector of Police

K.B.K. Vasuki, J.—The petitioner herein is shown as one of the members of the group arrayed as A party in the impugned summons dated

17.4.2013 passed by the first respondent/Sub Divisional Magistrate and Revenue Divisional Officer, Tirunelveli. This petition is filed to quash the

impugned summons dated 17.4.2013 in No. M.C. 33/2013/A5, in and under which, the petitioner and others shown as a party were called upon

to show cause as to why bond shall not be executed for Rs. 10,000/- to keep peace in the vicinity. The impugned summons is sought to be

quashed by the petitioner on the following grounds: (i) FIR in Cr. NO. 241/2012 on the file of Karivalamvandhanallur Police Station, 2nd

respondent herein dated 24.8.2012 registered for the offence u/s 107 Cr. P.C. does not disclose any allegation warranting any apprehension of

breach of peace and disturbance to public tranquility; (ii) The summons was issued u/s 114 of the Code without the order made u/s 111 Cr. P.C.,

which is one of the mandatory requirements of Section 114 Cr. P.C. and failure to do so vitiates the proceedings initiated u/s 107 Cr. P.C. and (iii)

the copy of the FIR, which is the basis for issuing impugned summons, was not furnished along with the summons and there is nothing in the

summons to indicate that the summons was issued by duly, appreciating the situation with proper application of mind.

On the other hand, the learned Government Advocate (Crl. Side) representing the respondents would attempt to defend the correctness of the

summons.

Heard the rival submissions made on both sides.

The grounds raised in this petition against the validity and enforceability of the impugned summons are well answered in the following judgments

of our High court reported in (i) Somasundaram and Others Vs. The Revenue Divisional Officer, Dharapuram and Another and (ii) CDJ 2004

MHC 374 (S. Annamalai v. The Tahsildar and Executive Magistrate).

The facts involved in the first case are more or less similar to the facts of the present case. There also, the report was received from the

Inspector of Police, Vellaikoil and similar summons was issued u/s 111 Cr. P.C. directing the parties to appear before the Sub Divisional

Magistrate cum Revenue Divisional Dharapuram and to show cause as to why they should not be ordered to execute a bond to keep peace and

good behaviour for a period of one year. The same was challenged by way of quash petition u/s 482 Cr. P.C. Similar grounds were raised by

following the earlier decisions of this Court viz., (i) 1983 LW (Cri.) 233 (Chinnaswamy and 32 others v. State rep. by Inspector of Police: (ii)

Sundaram and others Vs. State, and (iii) 1990(2) MWN (Cri.) 215 : 1990 L.W. (Cri.) 458 (Sivaswamy Thevar and 24 others v. Inspector of

Police, Puliangudi). It is observed in para 6 of the order that ""an order passed u/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 terms of 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 107 of Cr. P.C. for preservation of peace and order"". The order impugned therein 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. It is

observed by our High court that lack of information in the show cause order had caused prejudice to the petitioners, since they were not in a

position to challenge the same. It is further held therein that 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 and as the impugned orders therein

do not indicate application of mind by the Magistrate and they do not satisfy the double test the impugned orders are hence liable to be quashed.

In the second case, the learned brother judge, in addition to the grounds already referred to above, dealt with another ground regarding non

enclosure of the order made u/s 114 Cr. P.C. along with summons issued u/s 111 Cr. P.C. It is observed in para 7 of the order that ""it is

mandatory on the part of the Magistrate, who had initialed proceedings u/s 107 Cr. P.C. to pass an order u/s 111 Cr. P.C. for having come to the

subjective satisfaction regarding the security, for keeping the peace, involved by setting forth the substance of the information received etc. and the

failure to follow the same would render mere issuance of summons as an illegal act and is in violation of the mandatory requirements of Section 114

Cr. P.C.

In my considered view, the observation of our High court in the judgments cited above is squarely applicable to the facts of the present case.

Here also, on receipt of the information regarding registration of the case, no order was passed u/s 111 Cr. P.C. regarding nature of the case, the

petitioner has to meet. The summons except mentioning the particulars of the complaint, does not disclose the application of mind by the

Magistrate to the facts placed before him and the subjective satisfaction arrived at by him regarding the need for taking action u/s 107 Cr. P.C. for

maintenance of peace and order. The summons was issued merely on the basis of the receipt of the FIR without any independent order passed u/s

111 Cr. P.C., Thus, the impugned summons does not satisfy double test as laid down by our High court in the judgments cited above, which

would in turn render the order to be defective and bad in law. The impugned summons hence stands vitiated and is liable to be quashed. In the

result, this Criminal Original Petition is allowed and the proceedings in MC. 33/2013/A5 dated 17.4.2013 on the file of the Sub Divisional

Magistrate and Revenue Divisional Officer, Tirunelveli, first respondent herein, stands quashed, however, with liberty given to the first respondent

to initiate fresh action in accordance with law, if the situation warrants. Consequently, connected Miscellaneous Petition is closed.