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M.C.S. Rao and ors. Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ405
AppellantM.C.S. Rao and ors.
RespondentState of Mysore
Excerpt:
.....constitution of india.a writ of quo warranto was issued. - he was satisfied that there was likelihood of breach of peace. (as he then was) held that in the absence of any material on the face of the preliminary order to show that the magistrate had been satisfied that there was likelihood of the breach of the peace being caused by the person proceeded against, the preliminary order cannot be sustained......passed under section 112 of the criminal procedure code, in a proceeding under section 107 of the criminal procedure code, by the sub-divisional magistrate, bangalore sub-division. bangalore, in s. p. no. 14 of 1970-71. on 29-1-1971.2. the petitioners were respondents in the said case before the sub-divisional magistrate. the preliminary order is a very short one and all that it reads to show is that the sub-inspector of police jalahalli police station, had reported that the present petitioners were employees of bharath electronics limited. bangalore : that they were members of the bharath electronics employees' union; that they were in rival terms with the members of bharath electronics karmlka sangh : that they were indulging in violent and unlawful acts; and that thereby there was.....
Judgment:
ORDER

M.S. Nesargi, J.

1. In this petition, the petitioners have challenged the preliminary order passed under Section 112 of the Criminal Procedure Code, in a proceeding under Section 107 of the Criminal Procedure Code, by the Sub-Divisional Magistrate, Bangalore Sub-Division. Bangalore, in S. P. No. 14 of 1970-71. on 29-1-1971.

2. The petitioners were respondents in the said case before the Sub-Divisional Magistrate. The preliminary order is a very short one and all that it reads to show is that the Sub-Inspector of Police Jalahalli Police Station, had reported that the present petitioners were employees of Bharath Electronics Limited. Bangalore : that they were members of the Bharath Electronics Employees' Union; that they were in rival terms with the members of Bharath Electronics Karmlka Sangh : that they were indulging in violent and unlawful acts; and that thereby there was likelihood of breach of peace in the limits of Jalahalli Police Station. It further reads to show that therefore they were required to show cause as to why they should not be ordered to execute a bond in a sum of Rupees 1,000/- with one surety.

3. The learned Counsel for the petitioners contended that the order is in violation of the provisions of Sections 107 and 112 of the Criminal Procedure Code, inasmuch as nowhere has it been recorded by the Sub-Divisional Magistrate that on the facts reported by the Sub-Inspector of Police. Jalahalli. he was satisfied that there was likelihood of breach of peace. He placed reliance on the decision in Chinnava Chettiar v. State of Mysore (1968) 2 Mys LJ 551 : 1970 Cri LJ 111. The learned Government Pleader fairly stated that he was unable to support the order passed by the Sub-Divisional Magistrate.

4. In the decision cited above also, the preliminary order stated that information had been laid by the Circle Inspector of Police. Mangalore Circle, before the Sub-Divisional Magistrate, that from the incidents' which had taken place on the 18th. 19th and 20th April 1968. there was likelihood of the respondents committing breach of the peace. There was nothing to show in that preliminary order that on the said information the Sub-Divisional Magistrate, had formed an opinion that there was sufficient ground for proceeding under Section 107 of the Criminal Procedure Code. His Lordship. Sadashivavva, J. (as he then was) held that in the absence of any material on the face of the preliminary order to show that the Magistrate had been satisfied that there was likelihood of the breach of the peace being caused by the person proceeded against, the preliminary order cannot be sustained.

5. Section 107 (1) of the Criminal Procedure Code lays down that whenever such a Magistrate is informed that any person is likely to commit a breach of the peace or disturb the public tranauillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the peace, or disturb public tranauillity, the Magistrate, if in his opinion, there is sufficient ground for proceeding, may, in manner provided for that purpose, require such person to show cause;... A plain reading of Section 107 (1) of the Criminal Procedure Code makes it abundantly clear that it is absolutely necessary that the Magistrate should consider the facts contained in the information received by him and form an opinion that the facts give rise to grounds which are sufficient in their opinion for proceedings under Section 107 of the Criminal Procedure Code. In the absence of information of such opinion by a Magistrate. . proceedings under Section 107 of the Criminal Procedure Code cannot be instituted. The order in question does not contain any such material. It does not even show that the Sub-Divisional Magistrate had considered the facts contained in the report lodged by the Sub Inspector of Police, Jalahalli Police Station and those did, in his opinion, gave rise to sufficient grounds for proceeding under Section 107 of the Criminal Procedure Code.

6. In the result, this petition is allowed and the order passed by the Sub-Divisional Magistrate. Bangalore Sub-Division Bangalore, in S. P. No. 14 of 1970-71, on 29-1-1971 is set aside.


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