Babu and Jalappa Naidu vs State

David Annoussamy, J.—This is a petition u/s 482, Code of Criminal Procedure to quash the proceedings under Chapter VIII of the Code of Criminal Procedure, by the Executive Sub Divisional Magistrate, Trivellore. The case of the Petitioner is that he was issued a show cause notice u/s III, Code of Criminal Procedure and that the notice does not contain the essential pieces of information, nor does it disclose that the Magistrate has applied his mind to the facts of the case. In this connection, learned Counsel for the Petitioner brought to my attention a decision of this Court in Shanmugham v. State Inspector of Police, Palladam 1978 L.W. (Crl.) 138 where it was observed as follows:

It will be clear that a notice issued u/s 111 has to satisfy a double test. The first is that the notice must furnish all the information which is laid against a person or persons and secondly, before issuing a notice, the Magistrate has to satisfy himself that the situation calls for the issuing of a show cause order.

The learned Public Prosecutor contended that the decision was passed in a proceeding u/s 107, Code of Criminal Procedure and that the provision of law u/s 109, Code of Criminal Procedure is not the same as the one u/s 107, Code of Criminal Procedure It is true that u/s 107, Code of Criminal Procedure the Magistrate should receive the required information and in addition should form an opinion that there is sufficient ground for proceeding. Under S. 109, Code of Criminal Procedure upon the receipt of the information he may require the person to show cause by notice. It is the information which should disclose that a person is taking precaution to conceal his presence and it is for the informant to show that there is reason to believe that he is doing so with a view to commit a cognizable offence. Therefore, while acting u/s 109, Code of Criminal Procedure it would be enough for the Magistrate that the report received contains the information in respect of the above two elements, he does not have to form himself an opinion as u/s 107, Cr.P.C.

Under S. 111, Code of Criminal Procedure the Magistrate should supply the substance of the information received regarding the prosecution to conceal the presence by a person. The two important details to be disclosed are the place and time where the person was found to be concealing his presence. The show cause notice issued u/s 111, Code of Criminal Procedure is mute in respect of these two essential elements. Therefore, the Petitioner is not in a position to complain or to give any satisfactory reply to the Magistrate. He is absolutely prejudiced in his defence. The order is found vitiated in that respect and is accordingly set aside.

In the result, the petition is allowed and the proceedings are quashed.