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Cheekireddy Subba Reddy and ors. Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1713
AppellantCheekireddy Subba Reddy and ors.
RespondentState of Andhra Pradesh and anr.
Excerpt:
.....[receives is that there will be a breach of the public peace and if he considers that information to come from a reliable source, he has jurisdiction to make the order required by section 112. chinnappa reddy. if on the information before him the magistrate is satisfied that there is likelihood of a breach of the peace or disturbance of public tranquillity then the requirements of section 112 are met. past acts are safe guides to indicate whether a person has tendencies or inclinations to commit breach of peace or public tranquillity in future. that everyone of the persons complained against should be involved in everyone of the incidents. on the basis of these acts the learned magistrate who is responsible for the maintenance of peace in his division was satisfied that the petitioners..........the main contention of the learned counsel for the petitioners is that information regarding past acts involving breach of peace alleged to have been committed by the petitioners about a year prior to the said information is not reasonably sufficient for coming to the conclusion that there is likelihood of imminent breach of peace. in support of the contention, the learned counsel relied upon a decision of our learned brother a. v. krishna rao, j. in crl. m. p. nos. 1863/71 and 56/72. dated 24-2-1972 (andh pra). the learned judge in this case expressed the opinion that even past violent acts said to have been committed about a month prior to the laying of information under section 107, criminal p. c. are not sufficient to justify the passing of a preliminary order under section.....
Judgment:
ORDER

Chennakesava Reddy, J.

1. These are petitions seeking to invoke the inherent powers of this Court under Section 561-A, Criminal P. C. and quash the security proceedings instituted against them under Section 107, Criminal P. C. For a proper appreciation of the questions of law arising for decision in these petitions, it would be sufficient if we set out ;the facts in one of the cases. For the sake of convenience, we shall set out the facts in Crl. M. P. No. 1676 of 1972.

2. On credible information laid by the Sub-Inspector of Police, Vidavalur that the petitioners were likely to commit breach of peace or do a wrongful act which may probably cause breach of peace and disturb public tranquillity the Sub-Divisional Magistrate, Kavali was of the opinion that there was sufficient ground for proceeding against the petitioners under Section 107, Criminal P. C. and issued a preliminary order under Section 112, Criminal P. C. The learned Magistrate passed this order on 29th July. 1972. By the said order the petitioners were directed to appear in person on 19-8-1972 at Kavali and show cause why every one of them should not be ordered to execute a bond for a sum of Rs. 500/- with two sureties for a like sum each for keeping peace for a period of one year. The several incidents involving violence indulged in by the petitioners are set out in the order. As many as six incidents involving violence committed by the petitioners between 21-7-1971 and 7-7-1972 are set out The enquiry under Section 117, Criminal P, C. into the truth of the information laid before the magistrate is still to commence under Section 117, Criminal P. C. In such enquiry it is open to the magistrate either to direct the persons proceeded against to give security under Section 118, Criminal P. C. or to discharge them under Section 119, Criminal P. C. The order now issued by the learned Magistrate is only a preliminary order under Section 112 Cr.PC calling upon the persons informed against to show cause why they should not be ordered to execute a bond with or without sureties for keeping peace for a period of one year.

3. The main contention of the learned Counsel for the petitioners is that information regarding past acts involving breach of peace alleged to have been committed by the petitioners about a year prior to the said information is not reasonably sufficient for coming to the conclusion that there is likelihood of imminent breach of peace. In support of the contention, the learned Counsel relied upon a decision of our learned brother A. V. Krishna Rao, J. in Crl. M. P. Nos. 1863/71 and 56/72. dated 24-2-1972 (Andh Pra). The learned Judge in this case expressed the opinion that even past violent acts said to have been committed about a month prior to the laying of information under Section 107, Criminal P. C. are not sufficient to justify the passing of a preliminary order under Section 112, Criminal P. C. In Y. Ramanaiah v. State. (1967) 2 Andh WR 327 - (1968 Cri LJ 815) Kumarayya, J. (as he then was) also expressed the view that mere acts of violence in the past would not justify action under Section 107, Criminal P. C.

4. Before we proceed to consider this contention it would be appropriate to notice the setting in which Section 107 appears in the Code of Criminal Procedure. This Section appears in Chapter VIII.. Part IV headed 'Prevention of offences'. The object of this chapter is obviously the prevention of and not the punishment for offences. The provisions are primarily and essentially aimed at persons who are a danger to the public by reason of their wrongful or violent acts. The procedure prescribed in enquiry is materially different from that prescribed in Part VI of the Code dealing with 'Proceeding in Prosecutions' which provide for punishment. The persons brought before the Court in Section 107, Criminal P. C. proceedings are not accused, charged with the commission of any offence at all. but are only respondents. On the contrary part VI of the Code deals with 'proceedings in prosecution of accused persons.' They have either to be convicted, acquitted or discharged. In a proceeding under Section 107, Criminal P. C. the persons proceeded against are only called on to give security for keeping the peace. The provision is therefore a measure for protection of the society and nothing else. Such is the reason and spirit behind the Section.

5. What then is the nature and source of information which is sufficient for action under the Section The Section in so far as it is relevant for our purposes reads as follows:-

Section 107(1): 'Whenever a Presidency Magistrate. District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is informed 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 the magistrate if in his opinion there is sufficient ground for proceeding may. in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the magistrate thinks fit to fix.

6. The sine qua non for institution of proceedings under this section is that the magistrate should be of the opinion that there is sufficient ground for proceeding against the persons informed against. The responsibility is cast upon the magistrate. He is respon- sible for maintaining peace in his division. He is the sole authority to decide whether or not it is imperative for the maintenance of peace to institute proceedings. His discretion in this regard is absolute and unqualified. It is nowhere provided in the Section that the information contemplated must be gathered from legal evidence. It may be from any source public or private. There is no limitation of the way and manner in which the magistrate may become aware of the commission of a breach of peace. It is in the discretion of the magistrate to decide whether he should act or not on such information. Such information may be about past conduct and wrongful acts. They must not be however too remote and disjointed. In fact, it is largely from such prior acts exposing the tendencies and inclinations of persons that an inference could be drawn that a person is .likely to commit breach of peace in future. The approach of the learned magistrate from case to case must be highly empirical and not esoteric. The proceedings under this Chapter which are only precautionary are considered more fruitful although less forceful. Such being the scope and spirit of the Section, it is neither possible nor desirable to formulate a hard and fast rule as regards the nature or the source of information on which the learned magistrate should act. To generalise at large is perilous. What is reasonably sufficient to satisfy a magistrate must depend on the particular situation.

7. It may be apposite at this stage to consider the decided cases on the point. In Re Muthuswami Chettiar AIR 1940 Mad 23 : (41 Cri LJ 238) (FB) a Full Bench of the Madras High Court had occasion to consider the scope of Section 107, Criminal P. C. Leach. C. J. speaking for the Court observed as follows:-

There must be information of a nature which convinces him (magistrate) that there is a likelihood of a breach of the peace. It is impossible to formulate a hard and fast rule with regard to the nature of the information on which a magistrate should act. What is reasonably sufficient to satisfy a Magistrate must depend on the particular situation. The person who gives the information may not be in a position to give details, but the source of the information may be sufficient to convince the Magistrate that a breach of the peace is likely, and if he is convinced the law requires him to take action.

The Full Bench quoted with approval the exposition of the law by Knox J. in Jagujirai v. Emperor AIR 1918 All 93 : (19 Cri LJ 876V which is as follows:-

As I read this Section, there may be cases in which a magistrate of the first class Is merely informed Was a person is likely to disturb the public tranquillity without any information being given as to his intent to do wrongful acts. The magistrate is responsible for the peace of the district. He acts upon this information and he is required to set forth in writing the substance of the information received. In this case we are not told that the magistrate has received any information of definite acts intended. Apparently from the information he received he was satisfied that the persons concerning whom the information had been given were likely to commit some act which might occasion a breach of the peace. The reason given for this probability was that they were on terms of enmity with each other. Where the magistrate can go into further particulars he should certainly go into them- But it may well be that all the information he [receives is that there will be a breach of the public peace and if he considers that information to come from a reliable source, he has jurisdiction to make the order required by Section 112.

Chinnappa Reddy. J. in Jakka Venkureddy v. State of Andhra Pradesh, (1968) 2 An WR 152 : (1969 Cri LJ 685) stated the scope of Section 107, Criminal P. C. in the following terms:

It is true that Section 107 is not punitive in nature, but is intended to prevent apprehended breach of the peace. But that does not mean that past violent activities especially those of the immediate past, cannot be taken into consideration to arrive at the conclusion that there is likelihood of a breach of the peace in the future. If on the information before him the Magistrate is satisfied that there is likelihood of a breach of the peace or disturbance of public tranquillity then the requirements of Section 112 are met.

Dealing with the scope of Section 107, Criminal P. C. A. D. V. Reddy. J. in Mallu Thikmma Reddy v. State of Andhra Pradesh, 1972 Mad LJ (Cri) 635 (Andh Pra) observed as follows:-

The object of the proceeding under Section 107 is to prevent a future breach of the peace and not to deal with a habitual offender. A proceeding under Section 107, Criminal Procedure Code is to prevent future breach of the peace and events of the recent past are to be taken as a guide for coming to the conclusion whether any breach of the peace is likely to recur in the near future. Even here, there must be a thread connecting the several instances as distinguished from distinct and disjointed occurrence. Isolated occurrences which have no connection with each other cannot be made the basis for orders under Section 112.

The position of law has been lucidly explained by a Division Bench of the Calcutta High Court in Tulsibala Bakhit v. K. N. Khosal : AIR1953Cal109 in the following terms:

All that is required under Section 107, Criminal P. C. is that the magistrate must be 'informed' that a person is likely to commit breach of the peace- No hard and fast rule can be laid down about the quality and character of information on which the magistrate should or should not act. The magistrate must be left free with a wide discretion in this matter and it is in my opinion undesirable to fetter the hands of the magistrate in this respect.

The Supreme Court in Ujagar Singh v. State of Punjab : [1952]1SCR756 while dealing with the question whether the past conduct or antecedent history of a person can be taken into account when making a detention order under the Preventive Detention Act. 1950 observed as follows:-

As a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.

These observations have been echoed again in K. N. Joglekar v. Commr. of Police : 1957CriLJ10 . Indeed, Venkatarama Ayyar, J. speaking for the Court observed:

What a person Is likely to do in future can only be a matter of inference from various circumstances, end his past record will be valuable, and often the only record on which it could be made.

We shall now sum up the principles that can be discerned from the aforesaid discussion and decisions:

(1) Proceedings under Section 107, Criminal P. C. are precautionary is nature and not penal.

(2) All that is required for institution of proceedings under the Section is that the magistrate must be convinced from the information that there is a likelihood of breach of peace.

(3) The discretion of the magistrate In this regard is absolute and unqualified.

(4) No hard and fast rule can be laid down as regards the nature and source of information. It may be from any source public or private. Such information can be about past conduct and wrongful acts. Past acts are safe guides to indicate whether a person has tendencies or inclinations to commit breach of peace or public tranquillity in future. Such prior acts, however, should not be too remote and disjointed. There must be a common thread connecting them.

(5) It is neither possible nor desirable to formulate a hard and fast rule as regards the nature or the source of information on which the magistrate should act, and

(6) What is reasonably sufficient td satisfy a magistrate must depend on the particular situation. The learned Counsel for the petitioners placed great reliance on the judgment of our learned Brother A. V. Krishna Rao, J. in Cri. M. P. Nos. 11863 of 1971 and 56 of 1972, D/- 24-2-' 1972 (Andh Pra) and contended that information of past acts alone involving breach of peace is not reasonably sufficient for proceeding under Section 107, Criminal P. C. In that case the preliminary order was passed by the learned magistrate on 14-8-1971. The order was passed on the basis of the information' relating to past wrongful acts alleged to have been committed by the petitioners therein between 11-6-1971 and 14-7-1971.

The learned Judge observed :

If the petitioners had not done anything for one month after 14-7-1971 and the Magistrate directs their appearance on 6-9-1971 to my mind, it appears that the magistrate did not apprehend any imminent breach of peace.

The learned Judge in the particular circumstances of that case held that there was no justification for institution of proceedings under Section 107, Criminal P. C. against the petitioners in that case. We do not think that the learned Judge intended to lay down as a general proposition that past violent acts cannot be the basis of proceedings under Section 107, Criminal P. C. In (1967) 2 Andh WR 327 : (1968 Cri LJ 815) (supra). Kurnarayya, J. (as he then was) observed that mere acts of violence in the past would not justify action under Section 107, Criminal P. C. This decision of the learned Judge cannot be approved either in law or on authorities which we have discussed supra.

8. In all these cases it is common ground that the preliminary order under Section 112, Criminal P. C. has been passed by the learned magistrate only on information relating to past wrongful acts. Several incidents committed in the past involving violence have been enumerated by the learned Magistrate in his preliminary order. These incidents are not stray and unconnected incidents. They are also not too remote. It is not necessary for action under S- 107, Criminal P. C. that everyone of the persons complained against should be involved in everyone of the incidents. It is enough if all of them belong to one party or group. On the basis of these acts the learned Magistrate who is responsible for the maintenance of peace in his division was satisfied that the petitioners were likely to commit breach of peace in future and therefore passed the preliminary order under Section 112, Criminal P. C Applying the principles enumerated above, we have no doubt or difficulty in holding that the requirements of the Section have been complied with and that the grievance of the petitioners is therefore without any substance,

9. In Cri. M. P. No. 3001 of 1972 the learned Counsel for the petitioners raised another contention namely that the learned magistrate acted illegally in relying upon a wrongful act which is the subject-matter of a specific charge pending trial before the Criminal Court. In support of his submission he relied upon a decision of the Madras High Court in Konda Reddy v. King Emperor, ILR 41 Mad 246 =, (18 Cri LJ 878). Retracing the raison de'tre of the decision one would discern the inaptitude of that decision without any difficulty to the facts of this case. In that case, the previous proceedings under Section 107, Criminal P. C. on the same set of facts had ended in discharge. It is not the petitioners' case that the incident involving violence relied upon by the learned magistrate [was the basis of any previous proceedings. On the other hand, in a decision of the Madras High Court in Rangaswami Naidu v. King Emperor AIR 1943 Mad ,394 : (44 Cri LJ 7561 to which our attention was invited by the learned Public Prosecutor. Horwill. J. observed that there was no illegality in admitting the evidence in the security proceedings of a specific charge made under the Penal Code which is the subject-matter of a current trial. The learned Judge further observed that the scope of the two proceedings was quite different one being concerned with the punishment of offences committed in the past and the other being concerned with the preventing of breach of peace. Therefore, the learned Judge rightly saw no reason why the evidence of the same incident should not be used in both the cases if the same evidence is relevant to both the cases. We record our respectful accord with the observations of the learned Judge. Therefore, this contention also fails.

10. In the upshot the petitions are dismissed.


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