D.B. Lal, J.
1. These two Criminal Petitions presumably Under Section 482 of the Criminal Procedure Code, arise out of a proceeding Under Section 107 of the Criminal Procedure Code, pending before the Court of the Executive Magistrate, Mundgod, District North Kanara.
2. The Police Sub-Inspector, Mundgod submitted a report before the Magistrate, on 2-3-1976 alleging that there was likelihood of breach of the peace at the instance of the petitioners and the opposite party involved who is one Sri B. F. Bendigeri, President of Mundgod Taluk Congress (R) Committee, it was stated that the petitioners are the President, General Secretary and members of the Taluk Congress (O) Committee of Mundgod. The report of the Police Sub-Inspector, indicated that the petitioners 'colluded and decided to bring a party from Belgaum or Dharwar to murder Sri B. F. Bendigeri.' This they intend doing because, B. F. Bendigeri was appointed as President of Taluk PLD Bank, Mundgod and some person of his choice was appointed as Chairman of LMPC Society, Mundgod. Being aggrieved by these elections, the police reported, that the said petitioners decided to bring some persons from Belgaum or Dharwar and intended to commit the murder. The learned Executive Magistrate without forming an opinion, that there was sufficient ground for proceeding Under Section 107 of the Criminal Procedure Code, referred to that report of the Police Sub-Inspector and prepared the preliminary order Under Sub-section (1) of Section 107 of the Criminal Procedure Code. The present two criminal petitions are filed with reference to that proceeding before the learned Executive Magistrate.
3. It is manifest Under Section 107 of the Criminal Procedure Code, the Executive Magistrate, who receives information, that any person is likely to commit a breach of the peace is further required to formulate his opinion that there is sufficient ground for proceeding against that person. Only thereafter, he can issue a notice to show cause why the said person should not be ordered to execute a bond, for keeping peace for such period. as may be prescribed by the Magistrate. If the Magistrate, receiving the information, does not formulate any opinion of his own (but nevertheless proceeds to make the preliminary order, decidedly, he commits the initial mistake, as the very foundation of the preliminary order would be lacking. In that contingency, the preliminary order itself will be held to be illegal and the entire proceeding is liable to be quashed.
4. In Chinnaya Chettiar v. State of Mysore 1968(2) Mys LJ 551 : 1970 Cri LJ 111 a learned Judge of this Court was considering a similar situation. The preliminary order did not contain any material, on the face of it, to show that the Magistrate formed an opinion that there was sufficient ground for proceeding Under Section 107 of the Criminal Procedure Code. It was held that the order was invalid and must be set aside. A Magistrate proceeding Under Section 107 of the Criminal Procedure Code performs a judicial act inasmuch as he entertains the information either from the police or from some other source and further proceeds to form an opinion as to whether the said information is sufficient for proceeding and to that extent he performs the judicial act. If he merely narrates the information that he received from the police, in his preliminary order, and does not express that he formed any opinion on the basis of that information that any person is likely to commit a breach of the peace, perhaps he loses jurisdiction to proceed under that section. In the instant case, the learned Executive Magistrate has fallen into the very same error and his preliminary order, manifestly does not express that he formed any opinion upon the information received as to whether the petitioners were likely to commit breach of the peace. On this short ground, the preliminary order made by the Executive Magistrate is liable to be quashed.
5. That apart, the information received by the Executive Magistrate could not have prompted him to form an opinion as to whether the petitioners, were likely to commit breach of the peace. The allegation against the petitioners was that they 'colluded' and 'decided' to bring a party 'either from Belgaum or Dharwar' and the purpose was to murder Sri B. P. Bendigeri. It was entirely a vague assertion. One does not know who the party was and whether that party belongs to Belgaum or Dharwar. On such vague information, the learned Executive Magistrate could not possibly formulate an opinion that the petitioners were likely to commit breach of the peace. Moreover, Sri B. F. Bendigeri, if he has any cause for complaint, can very well apply to the authorities for his protection. There is no question of the petitioners committing any act of breach of the peace. This is a further ground, why the present petition, has to be allowed and the entire proceeding Under Section 107 of the Criminal Procedure Code, is to be quashed.
6. It is decidedly a case where abuse of process of Court has resulted and ends of justice do indicate that interference need be made by the Court. The preliminary order dated 2-4-1976 passed by the learned Executive Magistrate is thus set aside. Criminal Petition No. 35 of 1977 Is allowed and the order of the Executive Magistrate is set aside. Criminal Petition No. 357 of 1976 has become infructuous and the same may be dismissed.