C.V. Krishnappa Setty Others v. State Of Karnataka

This petition, though filed under sections 397 and 482 of the Code of Criminal Procedure, has been registered as criminal petition. The order challenged. is the one passed by the Sub-Divisional Magistrate, Doddaballapur Sub-Division, Bangalore, on 27th September, 1977 in case No. C.Mis. 14 of 1976-77 under section 111 of the Code of Criminal Procedure. Now that the Supreme Court has settled that such orders are not hit by section 397(2) of the Code of Criminal Procedure, this petition is being disposed of in exercise of the revisional powers of this Court.

2. By the impugned order, the Sub-Divisional Magistrate has initiated action under section 107 of the Code of Criminal Procedure. He has called upon the petitioners to appear before him at 2-30 p.m. on 15th October, 1977 and show cause why they should not be required to enter into a bond for Rs. 500 each with a surety for like sum for maintaining peace in the village for a period of one year from 27th September, 1977.

3. Before going into the merits of the case, it is appropriate to deal with one legal aspect.

4. section 107 of the Code of Criminal Procedure reads as follows:

"(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, 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."

"5. It is clear from the above that the power of an Executive Magistrate while acting under section 107 of the Code of Criminal Procedure is only to require the person concerned to execute a bond, for keeping peace for a period not exceeding one year, as the Magistrate thinks fit. The power does not extend to asking the person concerned to furnish surety also for a like sum."

"6. A preliminary order under section 111 of the Code of Criminal Procedure is required to be issued while initiating action under sections 107, 108, 109 or under section 110 of the Code of Criminal Procedure. section 111 of the Code of Criminal Procedure reads as follows:"

"When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall 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."

7. Section 108 of the Code of Criminal Procedure vests jurisdiction with the Judicial Magistrate of the First Class to initiate an action under that provision and empowers him to order the person concerned to execute a bond with or without sureties for his good behaviour. It can be noted that power to call upon a person to furnish sureties is provided in this section. Section 109 of the Code of Criminal Procedure empowers the Judicial Magistrate of the First Class to call upon the person concerned to execute a bond with or without sureties.

8. Section 110 empowers a Judicial Magistrate of the First Class to call upon the person concerned to execute a bond with sureties.

9. Reading of the aforementioned provisions makes it abundantly clear that in anaction under section 107 of the Code of Criminal Procedure, there is no power vested in the Executive Magistrate to call upon the person concerned to furnish surety or sureties while such power vests in the Judicial Magistrate of the First Class when such Magistrate initiates action under section 108 or section 109 or section 110 of the Code of Criminal Procedure. Therefore, the preliminary order envisaged by section 111 of the Code of Criminal Procedure will have to be in accordance with the ingredients of the section under which action is proposed to be initiated. When an Executive Magistrate is not empowered under section 107 of the Code of Criminal Procedure to call upon the person concerned to furnish surety or sureties, preliminary order under section 111 issued by such an Executive Magistrate cannot, in law, contain a provision calling upon a person or persons concerned to show cause why he or they should not be required to enter into a bond each with sureties (Italics is mine).

10. The legal position discussed above clearly depicts that the learned Sub-Divisional Magistrate has acted beyond the powers vested in him and as such the order in question is not in accordance with law and hence not sustainable. I have to add that the learned Sub-Divisional Magistrate appears to have acted in a mechanical manner.

11. My observation made at the end of the preceding paragraph that the learned Sub-Divisional Magistrate has acted in a mechanical manner, is fortified when the contents of the impugned order are looked into. The impugned order is directed against 43 persons. In order to provide the substance of information which the Sub-Divisional Magistrate was, in law, required to provide in such an order, the Sub-Divisional Magistrate has narrated three incidents. The first incident of 28th January, 1976 that a complaint was filed by one Korur Appaiahanna against Petitioner No. 2 Ramachandra. It has nothing to do with the other petitioners. The second incident relates to the date on 9th February, 1976 and it simply narrates that one Narayanagowda had lodged complaint that his hay stock had been burnt and the matter had been enquired into. What had transpired during that enquiry and who were involved in that incident is not provided. The connection between the incident and the petitioners is not at all indicated. Therefore, it does not inform the necessary substance’ required to be mentioned in a preliminary order of this nature so as to enable the petitioners to meet it. The third incident is of 13th December, 1976 and it is narrated in it that it is concerned with petitioners 2 to 12, 31, 32 and 33. How the other petitioners were linked up with this incident is not even indicated. All these aspects have not been overlooked by the Sub-Divisional Magistrate. Therefore, it is patent that the Sub-Divisional Magistrate appears to have acted in a mechanical manner which he is not, in law, expected to do; because it is necessary as per the provisions of sections 107 and 111 of the Code of Criminal Procedure that before initiating action under that provision the concerned Sub-Divisional Magistrate should deem it necessary which in my opinion, clearly means that he should be satisfied that such action is necessary to be taken in order to prevent persons 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 from doing so.

12. In view of the foregoing reasons, this petition is allowed and the impugned order dated 27th September, 1977 passed in Case No. C. Misc. 14 of 1975-77 by the Sub-Divisional Magistrate, Doddaballapura Sub-Division, is set aside.