Ahamed Khan and Others vs The Revenue Divisional Officer-cum-Sub-Divisional Magistrate and Others

S. Vaidyanathan, J.—This petition has been filed seeking to quash the order dated 10.09.2015 passed in Na.Ka. No. A3/3018/2015 by the Revenue Divisional Officer-cum-Sub Divisional Magistrate, Nagercoil/1st respondent herein, in and by which, the 1st respondent has come to a subjective satisfaction that there is a probability of breach of peace on the strength of the information received and ordered to explain in person or through an Advocate as to why the petitioner should not be asked to execute a bond for Rs. 15,000/- with sureties for keeping peace for a period of one year in the locality.

The petitioner has assailed the said order on the ground that there exists no such information with regard to cause disturbance or commit a breach of peace or disturb the public tranquility and therefore, the order passed by the 1st respondent is liable to be set aside. Moreover, the order has been passed under Section 107 Cr.P.C., which is precautionary in nature and the same cannot be used as a medium to agitate civil dispute, as the dispute in this case is with regard to administration and the conduct of prayer in the mosque. Above all, the main purpose of enactment of Section 107 Cr.P.C., is to prevent the anti social elements from indulging in criminal activities, whereas the petitioners herein are the respected members of the Society. Hence, it is submitted that the exercise of powers under Section 107 Cr.P.C. is unwarranted and the same has to be interfered with by this Court.

The counsel for the petitioners has submitted that the proceedings under Section 107 Cr.P.C. can be initiated only if there is any imminent danger to the society. In this case, a complaint has been lodged as early as on 23.12.2014 and the 1st respondent has taken 10 months'' time to pass this order, inter alia stating that there is a likelihood of breach of peace and public tranquility.

The counsel for the petitioners, in support of his contention, has relied on the following judgments:

"i) Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, , wherein it has been held as under:

"36. The Procedure begins with S. 112 . It requires that the Magistrate acting under S. 107 shall make an order in writing setting forth the substance of the information received, the amount of the bond, the term for which it is to, be in force and the number, character and class of sureties (if any) required. Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands. Although the section speaks of the ''substance of the information'' it does not mean that the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word ''substance'' means the essence of the most important parts of the information."

ii) Rajender Singh Pathania and Others Vs. State of N.C.T. of Delhi and Others, :

"14. The object of the Sections 107 /151 Cr.P.C. are of preventive justice and not punitive. S.151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace under Section 107 Cr.P.C. An arrest under S.151 can be supported when the person to be arrested designs to commit a cognizable offence. If a proceeding under Sections 107 /151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act under Section 107 is to be exercised in emergent situation.

A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant have been laid down in Section 151 . He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The Section, therefore, expressly lays down the requirements for exercise of the power to arrest without an order from a Magistrate and without warrant. If these conditions are not fulfilled and, a person is arrested under Section 151 Cr.P.C., the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Articles 21 and 22 of Constitution. (Vide: Ahmed Noormohmed Bhatti Vs. State of Gujarat and Others, ).

iii) This Court also in the case of G.G. Ravi Vs. State and Another, , has been pleased to hold as under::

Yet another circumstance put forth by the respondent is that the revision is not maintainable in an interlocutory order, since the petitioner challenged the proceedings u/s. 107 Cr.P.C. is an interlocutory order. In this context, a Full Bench decision of the Honourable Supreme Court has to be followed. In State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, after referring various judgments Their Lordships have held that if the objections raised by the accused were upheld the entire prosecution proceedings would have been terminated, the order was not interlocutory order and consequently it was revisable. The operative portion of the judgment is as follows:

"12. Same question has recently been considered in K.K. Patel and Another Vs. State of Gujarat and Another, . In this case a criminal complaint was filed against the Superintendent of Police and Deputy Superintendent of Police alleging commission of several offences under the Indian Penal Code and also under Section 147-G of the Bombay Police Act. The Metropolitan Magistrate took cognisance of the offence and issued process to the accused, who on appearance filed a petition for discharge on the ground that no sanction as contemplated by Section 197 CrPC had been obtained. The Metropolitan Magistrate dismissed the petition against which a revision was filed before the Sessions Judge, who allowed the same on the objection raised by the accused based upon Section 197 CrPC and also Section 161(1) of the Bombay Police Act, which creates a bar of limitation of one year. The revision preferred by the complainant against the order of discharge was allowed by the High Court on the ground that the order passed by the Metropolitan Magistrate rejecting the prayer of the accused to discharge them was an interlocutory order. In the appeal preferred by the accused, this Court after referring to Amar Nath and Others Vs. State of Haryana and Another, , Madhu Limaye Vs. The State of Maharashtra, and V.C. Shukla Vs. State through C.B.I., held that in deciding whether an order challenged is interlocutory or not, as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so, any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. It was further held that as in the facts of the case, if the objections raised by the accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and consequently it was revisable."

In this case also the objections raised by the petitioner are being accepted by this Court and hence the issuance of summons by the 2nd respondent is not an interlocutory proceedings. Therefore, the revision is well maintainable."

4.1 The counsel for the petitioners has quoted another judgment of this Court in the case of Baskaran and Others Vs. State, , to contend that the Execute Magistrate, in his impugned order, has referred to only one incident to arrive at the subjective satisfaction that there is a possibility of committing breach of peace and public tranquility, which, according to the judgment referred to above, is wholly unsustainable. This contention cannot be accepted and is liable to be brushed aside even at the inception. Because, the Magistrate cannot be expected to wait to pass an order under Section 107 Cr.P.C. till the occurrence of subsequent incident followed by the one already happened. Therefore, this Court do not want to take sides with the findings rendered in the said judgment.

Though no counter affidavit has been filed by the respondents, they have contested the case based on the materials placed by the petitioners, keeping in view the fact that there is a legal issue involved in this case. The only justification urged by the respondents is that considering the paramount importance of the public safety, the present order under Section 107 Cr.P.C. has been passed by the 1st respondent based on the information received from the 2nd respondent.

Heard the learned counsel on either side and perused all the material documents, including the propositions laid by the Hon''ble Supreme Court as well as this Court.

A circumspection of the fact would unfold that as a measure of pre caution, the 1st respondent has passed the impugned order dated 10.09.2015. Admittedly, in this case, FIR has been registered in the month of December, 2014, but the proceedings under Section 107 have been initiated only in December, 2015. What necessitated the 1st respondent to pass the impugned order in respect of a complaint lodged in December 2014, is unknown to this Court and there is no substantial material to show that there is likelihood of breach of peace and public tranquility.

A reading of Section 107 Cr.P.C. makes it clear that action is to be taken in the manner hereinafter provided, which indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent and the personal liberty of a person should not be curtailed according to the whim of the Magistrate concerned. Of course, there is no bar for the Executive Magistrate to pass such an order, but it should be passed to prevent the imminent danger and it should not be passed whenever he likes de hors the complaint lodged long back. For the sake of brevity, Section 107 Cr.P.C. is extracted below:

"107. Security for keeping the peace in other cases.

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, 1 with or without sureties,] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction."

To add further, to take proceedings against a person under Section 107 Cr.P.C., there must be a receipt of information by the Magistrate and such information must be that the person against whom allegation levelled is likely to commit breach of the peace or disturb the public tranquility and thereafter, the Magistrate has to come to the subjective satisfaction to form an opinion in that regard. The jurisdiction vested with a Magistrate to act under Section 107 is to be exercised in an emergent situation.

The Hon''ble Supreme Court has categorically held that unless the substance of the information is not stated in the order passed under Section 107 Cr.P.C., the order is bad in law. Thus, it is clear that merely because a crime is registered is not a ground to initiate proceedings under Section 107 Cr.P.C. Though it is true that Section 107 Cr.P.C. is not punitive in nature, it is intended to prevent apprehended breaches of the peace. But that does not mean that past violence activities, especially those of the immediate past cannot be take into consideration to arrive at the conclusion that there is a likelihood of a breach of the peace in the future. It is no doubt true that the authorities concerned should be vigilant enough to safeguard the interest of the society and people, as the prevention is better than cure, but at the same time, it should be remembered that compliance of law is very much important while passing an order by undergoing required tests.

A scrutiny of the impugned order reveals that the specifications as required under the law were not indicated in it and the order does not contain the substance of the information received. Issuing summons under Section 107 Cr.P.C. alone would not satisfy the requirements of Section 111 Cr.P.C., which requires any person to show cause by making an order in writing, narrating the substance of the information received, amount of bond to be executed, term of bond, number of class of sureties to be furnished. Therefore, looking at any angle, the impugned order of the 1st respondent has no legs to stand, as the same is not in consonance with the provisions of Section 107 Cr.P.C. and therefore, it is liable to be set aside.

Accordingly, this Criminal Revision Petition is allowed and the impugned order dated 10.09.2015 is set aside. However, it is made clear that this order does not preclude the Executive Magistrate from passing an order under Section 107 Cr.P.C., on receipt of reliable information to the extent that there is a likelihood of breach of peace and whenever situation warrants in terms of Section 107 . Connected miscellaneous petition is closed.