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Mrs. Charles De Cournalay and anr. Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1961CriLJ536
AppellantMrs. Charles De Cournalay and anr.
RespondentThe State of Mysore
Excerpt:
.....of the report of the police sub-inspector and of his sworn statement recorded that day, the learned magistrate was satisfied that the present petitioners had committed a series of wrongful arts continuously endangering the lives of mr. in a like sum pending the conclusion of the enquiry, it is urged by the learned advocate that no such order could be made before the order under section 112 had been explained to the petitioners and without an independent consideration of the question whether intimate that measures were necessary for the prevention of a breach of the peace or disturbance to public tranquillity and that the order contained nothing to indicate either the existence of circumstances warranting intimate that measures or that the learned magistrate had applied his mind to..........rau, j.1. this revision petition arises from proceedings instituted by the police against the present petitioners under section 107 of the cr.p.c. before the assistant commissioner and ex-ofticio first class magistrate, tarikere. on receipt of the report of the sub-inspector of police, tarikere, and after taking the sworn statement of the police sub-inspector, the learned magistrate made an order under section 112, cr.p.c. and notified the petitioners to show cause why each of them should not be called upon to enter into a bond in a sum of rs. 10,000 and to furnish one surety in a like sum for keeping the peace and good behaviour for a period of one year. he also directed that each of them should furnish an interim bond in a sum of rs. 10,000/- with one surety for a like sum pending.....
Judgment:
ORDER

N. Sreenivasa Rau, J.

1. This revision petition arises from proceedings instituted by the police against the present petitioners under Section 107 of the Cr.P.C. before the Assistant Commissioner and Ex-Ofticio First Class Magistrate, Tarikere. On receipt of the report of the Sub-Inspector of Police, Tarikere, and after taking the sworn statement of the Police Sub-Inspector, the learned Magistrate made an order under Section 112, Cr.P.C. and notified the petitioners to show cause why each of them should not be called upon to enter into a bond in a sum of Rs. 10,000 and to furnish one surety in a like sum for keeping the peace and good behaviour for a period of one year. He also directed that each of them should furnish an interim bond in a sum of Rs. 10,000/- with one surety for a like sum pending conclusion of the enquiry. This direction is obviously under Section 117(3) of the Code.

2. The learned advocate for the petitioner has challenged the initiation of the proceedings as unwarranted and contends that the order under Section 117(3), Cr.P.C. is totally unjustified. Along with the revision petition an application was made by the petitioners to stay the order calling upon them to give interim security of Rs, 10,000 under Section 117(3).

In the affidavit supporting the application it was stated that when the petitioners offered even to give their coffee estate as security by way of mortgage, the learned Magistrate would not accept it. When the revision petition came. up for admission an order was made staying further proceedings subject to each of the petitioners producing a personal bond for a sum of Rs. 10,000/- under Section 117(3), Cr.P.C. and the records were called for.

3. Petitioner 1 is the wife of Sri Charles De Courpalay's and petitioner 2 is their son. It is seen from a perusal of the records that according to the police report there was dispute between the petitioners and Sri Charles De Courpalay's in regard to the possession and management of the coffee estate known as Sampigekan Estate, that there was litigation between them, that in the month of June 1960 there had been incidents' showing high-handed action by the petitioners in Sri Charles De Courpalay's bungalow and the cooly lines of the estate during the absence of Sri Charles De Courpalay's and that on the 18th July, when he returned to the estate, he was subjected to foul abuse by the petitioners and that petitioner 2 threatened to beat him and they conducted themselves violently, that similar conduct was exhibited on the 19th and that on the 20th they assaulted him.

The sworn statement of the Sub-Inspector recorded by the Magistrate contains substantially the same allegations. It should be added that according to the report and the sworn statement some of these acts took place on 20th July, 1960, in the presence of the Sub-Inspector and the Circle Inspector who had gone to the estate on receiving Sri Charles De Courpalay's complaint. After recording the sworn statement, the learned Magistrate made the following order:

On a perusal of the report of the Sub-Inspector, Tarikere Kasaba Police Station and also on his sworn statement recorded today, I am satisfied that the respondents 1 and 2 noted above have committed series of wrongful acts continuously endangering the life of Mr. Charles De Courpalay's and his personal staff, apprehending to be tending a breach of peace and disturb the public tranquillity. It is therefore ordered to take up proceedings under Section 107, Cr.P.C., and to show cause as to why they should not be called upon to enter into a bond in a sum of Rs. 10,000/- each and also each to furnish one surety in a like sum for keeping peace and good behaviour for a period of one year. I further direct that each respondent should furnish an interim bond in a sum of Rs. 10,000/- with one surety in a like sum pending conclusion of the enquiry.

The learned Magistrate directed the issue of summonses to the petitioners enclosing copies of the order. In response to the summonses the petitioners appeared before the Court on the 26th July, 1960. The order sheet relating to that date reads: 'Case called. Complainant is present. Respondents (the present petitioners) are present, Interim personal bonds of the Respondents for Rs. 10,000/- were taken. They pray for some time o furnish and also to file objection statenent. They have been given time till 1st to furnish reties and to file objection to show cause notice. most the case to 1-8-1960. Intimate to complainant.'

It is at this stage that this revision petition was filed challenging the proceedings.

4. As mentioned above, the learned advocate for the petitioners contends that no action under Section 107, Cr.P.C. was called for at all on the basis of the material before the learned Magistrate bate. At the same time it is stated in the affidavit in support of the revision petition that when petioner 2 requested the learned Magistrate to supply him with the copies of the report of the Sub-Inspector of Police and his sworn statement, he-was told that the Court documents could not be given to him.

Apart from the question whether the learned Magistrate was right in refusing to furnish the copies, it is difficult to understand on what basis it can be contended for the petitioners that, when they did not know what the material before the Court was, such material did not justify action under Section 107, Cr.P.C. It may also Lementioned that as far as can be gathered from the records. no application appears to have been filed for certified copies of the abovementioned documents.

The matter, however, appears to me to be of no substantial importance, since the real question, for consideration is whether the learned Magistrate has fulfilled the requirements of Section 112, Cr.P.C. It is to be noticed that in respect of the several security measures contemplated under Sections 107 to 110, Cri.P.C. the real initiation or proceedings by the Magistrate is under Section 112 and Sections 112 to 126-A arc intended to regarded those proceedings.

Section 112 requires that the Magistrate shall make an order in writ ig, setting forth the information received, the amount of the bond to be executed, the term for which it has to be enforced and the number, character and class of sureties (if any) required. If the person proceeded against I present in Court at the time of the making of the order, Section 113 requires the Court to road over the order to him or to explain to him the substance of it.

If he is not present, Section 114 requires that the Magistrate shall issue a summons requiring him to appear and Section 115 provides that a copy of the order under Section 112 shall be delivered to such person when the summons is executed. In the case on hand, the petitioners were not present in Court on the day the learned Magistrate made the order under Section 112 and he accordingly directed the issue of summonses to them and it is seen that copies of the order under Section 112 were served on them.

It is urged by the learned advocate for the petitioners that the order made by the learned Magistrate is not in conformity with the requirements of Section 112. The order has been extracted above. The last part of it, though not so stated, is under Section 117(3). The earlier portion merely states that on a perusal of the report of the Police Sub-Inspector and of his sworn statement recorded that day, the learned Magistrate was satisfied that the present petitioners had committed a series of wrongful arts continuously endangering the lives of Mr. Charles De Courpalay's and his: personal staff and that this gave room for apprehension of a breach of the peace and disturbance to public tranquillity,

Under Section 112 the Order should set forth the substance of the information received. It is contended by the learned advocate for the petitioners that the order does not set forth the substance of the information received and the mere statement in general and vague terms that the petitioners have committed a series of wrongful acts continuously endangering the lives of Mr. Charles De Courpalay's and his personal staff can by no means be regarded as setting forth the specific information received by the Court. He says that the proceedings having been based on such an order are without jurisdiction and have to be quashed.

5. As regards the order under Section 117(3) directing each of the petitioners to furnish an interim bond in a sum of Rs. 10,000/- with one surety. in a like sum pending the conclusion of the enquiry, it is urged by the learned advocate that no such order could be made before the order under Section 112 had been explained to the petitioners and without an independent consideration of the question whether Intimate that measures were necessary for the prevention of a breach of the peace or disturbance to public tranquillity and that the order contained nothing to indicate either the existence of circumstances warranting Intimate that measures or that the learned Magistrate had applied his mind to the question.

6. It appears to me that the contentions in regard to both the orders, i.e., one under Section 113 and the other under Section 117(3) are well founded. The learned advocate for the petitioners has relied upon several decisions in support of these contentions. But it is hardly necessary to refer to them as the position is well settled and is, indeed, quite clear from the language of the sections themselves. The need to set forth the substance of the information received is not only for the purpose of showing that the Magistrate has applied his mind to the circumstances of the case before initiating preventive action, but also to see that the person sought to be proceeded against has notice of the case he has to meet.

These objects cannot be achieved unless the order contains in specific and concrete terms the nature of the information which would show that a person is likely to Commit a breach of the peace or disturb the public tranquillity or to do any wrongful act which may have such results. All that the learned Magistrate has done in the order in question is to repeat the language of Section 107, the only addition being that the wrongful acts were continuously endangering the lives of Sri Charlesi De Courpalay's and his personal staff. There is no indication to show what those wrongful acts are. Even in repeating the wording of Section 107, the learned Magistrate directs the present petitioners to show cause why they should not be called upon to give security not only for keeping the peace but also good behaviour. Apparently he has failed to notice the difference between security for keeping the peace and security for good behaviour, that while the former is dealt with under Section 107 the latter may arise under different circumstances which are separately dealt with under Sections 108, 109 and 110. It is clear, therefore, that the learned Magistrate has not applied his mind to the provisions of law governing the matter and that his order under Section 112, Cr.P.C. cannot be supported.

7. As regards the order under Section 117(3), it is not in all cases in which an order is made under Section 112 that an order under Section 117(3) also is to be made. It is meant to meet an emergency. Only when the Magistrate is satisfied independently of the order under Section 112 that Intimate that measures are necessary for the prevention of the breach of the peace or disturbance to public tranquillity or the commission of any offence or for the public safety until the conclusion of the enquiry initiated under Section 112, such an interim order can be made.

And it is necessary that the reasons for making the order should be recorded in writing. It can be made only after the requirements of Section 117(1) are fulfilled, i.e., after the order under Section 112 has been read or explained if the person is present at the time the latter order is made; or after he appears or is brought before the Magistrate in compliance with a summons or warrant. In the present case the learned Magistrate made both the orders together.

The order under Section 117(3) was therefore made by him even before the petitioners appeared before him. Nor has he recorded his reasons in writing for making that order. There is nothing to indicate that he applied his mind to the question whether there was an emergency such as to call for an interim order. He has therefore failed to. fulfil both the requirements necessary for making] an interim order.

Hence that order also cannot be sustained. But, as mentioned above, the very foundation for such an order is lacking, since the order under Section 113 itself as it stands now, has been found unsustainable and it is only if that order is a valid one, an order under Section 117(3) can be made. Hence the interim order also has to be set aside.

8. The only question that remains for consideration is whether as urged by the learned advocate for the petitioners, the proceedings have to be quashed altogether. In support of this contention the learned advocate relies Upon the decision reported in 11 Mys LJ 253. That was a case in which it was found that the material on which the Magistrate based the preliminary order was quite insufficient and did not justify action being taken under Section 107, Cr.P.C. at all.

It cannot be said that the position in the present case is necessarily so. The report of the Sub-Inspector of Police and his sworn statement do contain material which, if believed, may indicate that there was a prima facie case for initiating proceedings under Section 107. But, the learned Magistrate in making the order under Section 112 has not applied his mind to the material.

It seems to me therefore that the proper course would be to set aside the preliminary order under Section 112 and the interim order under Section 117(3), Cr.P.C. passed by the learned Magistrate and to direct him to decide, after applying his mind to the material before him, whether an order under Section 112 is to be made and if he decides to make such an order, to proceed further with the case according to law. It is ordered accordingly. As the learned Magistrate's orders under Sections 112 and 117(3) are set aside the bonds executed by the petitioners are also cancelled.


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