Jayavelu and 22 others vs Inspector of Police Oomachikulam Circle, Madurai District

Padmini Jesudurai, J.—The petitioners against whom the Sub Divisional Magistrate and Revenue Divisional Officer, Madurai has initiated

proceedings under S. 107, Crl. P.C., in M.C. No. 1635 of 1987 invoke the inherent powers of this Court under S. 482, Crl. P.C., to quash the

above proceedings.

Apprehending breach of peace, the Executive Magistrate initiated proceedings under S. 107, Crl. P.C., and had issued notice under S. 111,

Crl. P.C, requiring the petitioners to show cause as to why they should not be required to execute a bond. The above notice under S. 111, Crl.

P.C., is now challenged.

Thiru M. Ravindran, learned Counsel for the petitioner based his prayer on two grounds.

(i) the order of the Executive Magistrate passed under S. 111, Crl. P.C., requires the petitioner to show cause as to why they should not be

required to execute an interim bond under S. 116(3), Crl. P.C"" for a sum of Rs. 500 and that this is in violence of not only the provisions of the

Code, but also the decisions of this Court.

(ii) the impugned order does not show under what provision the Executive Magistrate proposes to take action, since S. 111, Crl. P.C., is common

to Ss. 107, 108, 109 and 110, Crl. P.C.

The impugned order passed under S. 111, Crl. P.C., contains nine instances, from which the authority had reasonable grounds for apprehending

breach of peace, justifying commencement of the proceedings. Thereafter the petitioners are required to show cause on 10th August, 1987, at 3

p.m., as to why they ""should not be required to execute a bond for a sum of Rs. 500, for six months (for their) good behaviour and also for the

execution of interim bond as per S. 116(3), Crl. P.C, for the like sum, until the disposal of the case."" This shows that the petitioners have been

required to show cause as to why they should not be required to execute an interim bond under S. 116(3), Crl. P.C. It is settled law that an interim

bond under S. 116(3), Crl, P.C, can be ordered to be executed only after the commencement of the enquiry under S. 116(1), Crl. P.C. When a

Magistrate decides to take action under any one of the provisions of Sections 107, 108, 109, 110, Crl. P.C, he has to issue a notice under S. 111,

Crl. P.C. requiring the persons against whom he proposes to action, to show cause as to why a bond should not be obtained from them. This

notice under S. 111, Crl. P.C, has to contain the grounds of his satisfaction, the bond amount, the terms of the bond and the nature of the sureties,

if any. This order under S. 111, Crl. P.C, has to be served on the counter petitioners, if they are present in Court directly as required under S.

112, Crl. P.C, and if not by issue of summons and if in custody by a warrant, requiring them to appear before the Magistrate on a particular day.

The summons or the warrant, as the case may be, should be accompanied by a copy of the order made under S. 111, Code of Criminal

Procedure When the counter petitioners, in response to the above notice appear before the Magistrate, the later under S. 116(1), Crl. P.C, should

proceed to inquire into the truth of the information, on the basis of which proceedings have been commenced and has to take such further evidence

as may be necessary. The evidence is to be recorded in the manner provided for in summons cases. It is after this stage, that the question of

requiring an interim bond would arise. The very wording of S. 116(3), Crl. P.C, clearly indicates that after the commencement and before the

completion of the inquiry under Sub-S.(l) the Magistrate may, if he considers, that immediate measures are necessary for the prevention of the

breach of peace or disturbance of public tranquillity or the commission of an offence or for the public safety for reasons to be recorded in writing,

direct the person in respect of whom an order under S. 111, Crl. P.C, has already been made, to execute an interim bond. The procedure,

therefore, clearly indicates that the question of an interim bond would arise only after the counter petitioners have appeared before the Executive

Magistrate and after the Executive Magistrate has commenced the enquiry. Even for requiring an interim bond, the Executive Magistrate has to

record his reasons. This Court in Thenmalaiyandi v. The State through the Inspector of Police, Perayur 1983 L.W. (Crl.) 313, as also in Perumal

and Ors. v. State rep., by the Inspector of Police, Aruppukottai 1984 L.W. (Crl.) 173, has held that the Executive Magistrate cannot direct

execution of an interim bond until the inquiry under S. 116(1), Crl. P.C., has really commenced. Apart from that S. 116(3), Crl. P.C, does not

contemplate any show cause notice, for requiring an interim bond. All that the Executive Magistrate is required to do is, to record his reasons as to

why an interim bond is necessary and thereafter direct the execution of an interim bond. In the instant case the impugned order clubs the provision

of S. 111, Crl. P.C, and the provisions of S. 116(3), Crl. P.C, which really cover two different stages and two different situations. The order,

therefore, cannot be sustained.

The next contention of the learned Counsel for the petitioners has also to be accepted. As rightly contended by the learned Counsel, the

impugned order under S. 111, Crl. P.C. makes no reference to the provision of law, under which the Executive Magistrate proposes to take

action. It is not known whether the action is sought to be taken either under Ss. 107 or 108 or 109 or 110 Code of Criminal Procedure S. 111,

Crl. P.C, is common to the above four sections. The contention of the learned Public Prosecutor that the ingredients of S. 107, Crl. P.C, have

been mentioned in the impugned order and that therefore, it would be possible for the petitioners to find out, that the proceedings are really initiated

under S. 107, Crl. P.C, cannot be accepted. The order should mention under which of the above sections, viz., whether under S. 107 or S. 108 or

Sections 109 or 110 proceedings are commenced so as to enable the petitioners to know under which provision of law they are proceeded

against. On this ground also the order has to be set aside. In the result this petition is allowed and the proceedings in M.C. No. 1635 of 1987 on

the file of Sub Divisional Magistrate and Revenue Divisional Officer, Madurai are quashed.