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Chinnaswamy and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCrl.M.P. No. 4231 of 1981
Judge
Reported in1983CriLJ1761
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 107, 111, 145 and 482
AppellantChinnaswamy and ors.
RespondentState
Appellant AdvocateT.S. Arunachalam, ;N. Balen and ; Raj and Raj, Advs.
Respondent AdvocateThe Public Prosecutor
Excerpt:
.....situation was grave and tense in the village and that unless the petitioners were summoned and enquired and directed to execute bonds for keeping the peace, there was imminent danger of breach of peace and disturbance to public t on 3-8-1981 herein fail not'.on receipt of the summons, the petitioners have come to this court to seek, a quashing of the proceedings. , is issued, the magistrate should consider the report of the police officer sent to him and if he is satisfied about the truth of the information and about the need to take action under s. has to satisfy a double test :(1) it must set forth the substance of the information received as well as 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.....order1. the counter-petitioners in m.c. no. 59 of 1981 on the file of the executive first class magistrate-cum-sub-collector, sankari, have filed this petition under s. 482, cr.p.c. for quashing the proceedings against them, in the abovesaid case. 2. in respect of two hands bearing survey no. 115/2 of an extend of 2.24 acres and 116 of an extent of 2.52 acres in seetharamapalayam village in tiruchengode taluk there were disputes between the first petitioner and his group of people, on the one hand, and one rengasami naidu and his group of people, on the other. the first petitioner, who was appointed as the sole non-hereditary trustee of arulmigu vinayagar temple of sengodampalayam and arulmigu mariamman temple of kailasampalayam in tiruchengode taluk claimed that the lands in the two.....
Judgment:
ORDER

1. The counter-petitioners in M.C. No. 59 of 1981 on the file of the Executive First class Magistrate-cum-Sub-Collector, Sankari, have filed this petition under S. 482, Cr.P.C. for quashing the proceedings against them, in the abovesaid case.

2. In respect of two hands bearing survey No. 115/2 of an extend of 2.24 acres and 116 of an extent of 2.52 acres in Seetharamapalayam village in Tiruchengode Taluk there were disputes between the first petitioner and his group of people, on the one hand, and one Rengasami Naidu and his group of people, on the other. The first petitioner, who was appointed as the sole non-hereditary trustee of Arulmigu Vinayagar temple of Sengodampalayam and Arulmigu Mariamman temple of Kailasampalayam in Tiruchengode Taluk claimed that the lands in the two survey fields belong to the temple. Rengasami Naidu and some others, who are Poojaris of the temple have been contending that the lands were their patta lands and that they are entitled to parcel out the lands into plots and sell them. The dispute led to Rengasami Naidu and some others filing a suit O.S. 294 of 1981 on the file of the District Munsiff's Court, Tiruchengode for declaration and injunction. The court did not grant any interim injunction and hence the disputes regarding possession continued. That resulted in the police authorities laying information before the Executive First Class Magistrate for action being taken against both parties under S. 145, Cr.P.C. Besides these proceedings, W.P. Nos. 2793 and 2794 of 1981 have also been filed in connection with the disputes between the parties and those petitions are also pending. It is in that backdrop of matters, the Inspector of Police, Tiruchengode laid information before the Executive First Class Magistrate setting out instances of the unlawful activities of the petitioners and praying the Magistrate to take proceedings under S. 107, Cr.P.C. and enquire the petitioners and order them to execute bonds for maintenance of peace and order. The Inspector of Police has stated in his report that the petitioners have prevented a milk-vendor from supplying milk to three persons, viz., Veerasami Naidu, Krishnaswami Naidu and Ellappan, that they also prevented masons and workers from completing the house being built by Veerasami Naidu, that the counter-petitioners suddenly arranged for a pongal pooja in the disputed land and created a tense situation, that they proclaimed by beat of tom-tom that the villagers should not purchase articles from the shops of Naidus in the village, that they prevented the dead body of one Manickam being buried in the common grave-yard and created a tense situation, that they laos prevented people from going to the land of Veerasami Naidu for digging a well, that they beat Veerasami Naidu, Subramaniam and one Sasikala and caused injuries to them, that on account of the unlawful activities of the petitioners, the situation was grave and tense in the village and that unless the petitioners were summoned and enquired and directed to execute bonds for keeping the peace, there was imminent danger of breach of peace and disturbance to public tranquillity.

3. In spite of the Inspector of Police having laid a detailed information, the learned Magistrate has not passed a considered order, but has merely issued summons to the petitioners in the following terms :-

'Whereas your attendance is necessary to answer to charge of under section 107, Cr.P.C. and you are hereby required to appear in person before the executive first Class Magistrate and Sub-Collector Sankari at 11 a.m. on 3-8-1981 herein fail not'.

On receipt of the summons, the petitioners have come to this court to seek, a quashing of the proceedings.

4. The petitioners assail the validity of the proceedings taken against them on the following grounds : (1) The Magistrate has no jurisdiction to issue sommons without complying with the provisions of S. 111, Cr.P.C. (2) On 3-8-1981 when some of the petitioners appeared before the Magistrate, they were given a copy of the report sent by the Inspector to the Executive First Class Magistrate and though four instances are listed in paras 5 to 8 of the report and in respect of one of them a case has been registered, no charge-sheet has been filed; (3) None of the materials contained in the report sent by the Inspector can form the basis for initiating proceedings under S. 107, Cr.P.C. (4). The learned Magistrate has not applied his mind to the report before initiating proceedings under S. 107, Cr.P.C., and issuing summons to the petitioners ! (5). A list of 21 witnesses have been appended to the copy of the first information report but the gist of their evidence is not made mention of, and (6) The initiation of proceeding son the basis of cases under investigation is illegal.

5. On account of one glaring error committed by the learned Magistrate, it is not necessary to go into the merits of the various contentions put forth by the Magistrate. Before an order under section 111, Cr.P.C., is issued, the Magistrate should consider the report of the police officer sent to him and if he is satisfied about the truth of the information and about the need to take action under S. 107, Cr.P.C., for preservation of peace and public tranquillity, then only he should pass an order under S. 111, Cr.P.C., and issue notices to the persons concerned. The order passed under S. 111, Cr.P.C. has to satisfy a double test : (1) It must set forth the substance of the information received as well as 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). Besides the order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under S. 107, Cr.P.C. for preservation of peace and order and thereupon, he had passed the order. In this case, the Magistrate has not passed any preliminary order; but has merely issued summons to the petitioners to attend this court. Even on the date of hearing, when they attended the court, they were not given a copy of the preliminary order passed by the Magistrate, but have been merely given a copy of the report sent by the Inspector of Police. From that report, it cannot be said that the Magistrate has accepted the truth of the statement made therein and that the Magistrate has reached the requisite subjective satisfaction for initiating proceedings under S. 107, Cr.P.C. On account of this material error committed by the learned Magistrate, the petitioners deserve to succeed in the petition. Consequently, the petition will stand allowed and the proceedings against them in M.C. No. 59 of 1981 on the file of the Executive First Class Magistrate-cum-Sub-Collector, Sankari, will stand quashed.

6. If in spite of the passage of time, the feelings between the parties continue to be strained and there is likelihood of danger to peace and tranquillity at the hands of the petitioners, the police authorities are at liberty to send a fresh report to the Magistrate and on receipt of such report, it is open to the Magistrate to pass a fresh order against the petitioners in accordance with law.

7. Petition allowed.


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