Judgment:
1 ® IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE27H OCTOBER, 2014 :BEFORE: THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.6520/2014 ... PETITIONER BETWEEN SRI. RUSTOM KERAWALA, AGED ABOUT48YEARS, S/O PESI KERAWALA, No.25, 4TH FLOOR, P.J.
RAMCHANDANI MARG, MUMBAI-400 001. (BY SRI. C.V. NAGESH SR. COUNSEL FOR SRI. RAGHAVENDRA.K, ADVOCATE) AND STATE OF KARNATAKA BY THE STATION HOUSE OFFICER, VARTHUR POLICE STATION, AIRPORT SUB-DIVISION, BANGALORE. (BY SRI. B.T. VENKATESH, SPP-II) ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER
/COMMUNICATION DATED:
24. 7.14 PASSED IN CASE NO.MAG/CR/107 CR.P.C/32/14-15 ON HIS FILE, REQUIRING THE PRESENCE OF THE PETITIONER BEFORE HIM IN RELATION TO THE ACTION INITIATED BY THE RESPONDENT POLICE U/S107OF CODE OF2CRIMINAL PROCEDURE AND FURTHER BE PLEASED TO QUASH ALL THE PROCEEDINGS WHICH CAME TO BE RECORDED SUBSEQUENT TO THE APPEARANCE OF THE PETITIONER IN THE CASE BEFORE THE COURT. THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard Sri. C.V.Nagesh, Learned Senior Counsel appearing for the petitioner and Sri.B.T.Venkatesh, learned SPP-II, who takes notice for respondent – State. Perused the records.
2. The petitioner has sought for quashing of the entire proceedings in Case No.MAG/CR/(107 CRPC)/32/14-15 dated 24.7.2014 on the file of the Taluka Executive Magistrate (“TEM” for short), Bangalore East Taluk, Krishnarajapura, Bangalore.
3. Sri C.V. Nagesh, learned Senior counsel fairly submitted that though the order of the TEM is revisable, this court can entertain the petition under section 482 of Cr.P.C., considering the glaring errors committed by 3 the TEM and also to set some standards as to how the Taluka Executive Magistrates have to deal with the matter under the relevant provisions.
4. Learned senior counsel brought to my notice that the Order dated 24.7.2014 is a computerized order keeping open certain blanks. In the impugned order except filling up the case number, date and the provision of law and putting his signature, nothing has been filled up done by the TEM. Even without applying his mind regarding the facts of the case and the legal requirements as contemplated u/s.111 of Cr.PC the TEM has issued the Order. He also brought to my notice that the said Order/Communication was issued on 24.7.2014 and on the same day, the petitioner was produced before the TEM and he was released on bail on executing a personal bond for a sum of Rs.50,000/- and the case was posted for further proceedings. The whole proceeding is vitiated by serious incurable 4 irregularities which amounts to illegalities. Hence, he prayed for quashing of the said Order/Communication.
5. I have carefully perused the said Order passed by the TEM. It is just like a cyclostyled Order (computerized format). The TEM has filled up only the case number, under which provision the case has been initiated and also the date, keeping open the remaining blanks un-filled, put his signature. But, nothing is there to indicate that the TEM has applied his mind before issuing such an Order.
6. It is worth to refer some of the important decisions in this regard. (1) Madhu Limaye Vs State. AIR1971S.C.2486.-. Before initiating a proceeding under this section,(107 Cr.P.C.) the Magistrate should be satisfied that such proceedings should be started and he should record reasons for his satisfaction and issue notice to the person sought to be proceeded against. Where a magistrate called for police report not satisfied 5 with the petition filed by the opposite party, it shows that he was not satisfied. If he was not satisfied no proceeding could be initiated. The Magistrate cannot initiate proceedings on a bare perusal of the complaint or by only examining the complainant on oath, the subjective satisfaction of the Magistrate is necessary. The words used in the section “Substance” means essence of the most important parts of the information. (2) M. Bhoja Hegde Vs Lokayya Poojalri. 1961 Mys.L.J.
30 (3) Chinnaya Chettiar Vs state of Musore ; 1968 (2) Mys. L.J.
551. (4) Lingayath Ullur Doddangouda Vs State of Mysore. 1971 (1) Mys.L.J.
S.N.175 (5) Chand Sab Vs State of Karnataka. 1980(2) Kar.L.J.
S.N.
112. (6) Veerappa and others Vs. State of Karnataka 1981 Crl. L.J.
NoC204(kar) - Order under sec 111 shall contain in specific concrete terms the nature of information which would show that a person is likely to commit a breach of peace or disturb the public tranquility 6 or to do any wrongful act which may have such results. Where the recitals in the orders show that the Magistrate has not applied his mind to the matter, if the order is mechanical, his order under the section cannot be sustained. (7) Shivaputrappa and others V/s State of Karnataka. 1977(2) I.L.R. 812.-. As the very foundation of the preliminary order under the section, on receipt of information, the Magistrate has to formulate opinion of his own and express such opinion the order made otherwise is liable to be quashed. (8) State of Mysore Vs Dodda Eranna 1970 (1) Mys.L.J.
112.-. The Magistrate has to record in writing the reasons for his considering that immediate measures are necessary for prevention of breach of peace or disturbance of public tranquility etc. If the order does not disclose the reasons the order would be bad. (9) Kadappa and others Vs State of Karnataka 1981(1) ILR242 Order under the Section is a judicial order and printed form should not be used for drawing up such order. 7 (10) Mahadeva Swamy Vs State of Karnataka. 1988(3) ILR1970 - The order should disclose the substance of the information received the bond to be executed, the term for which it has to be in force and the number character and class of sureties if any required. The preliminary order cannot be sustained. Time and again, the Hon'ble Apex Court and this Court have cautioned the TEM not to use the cyclostyled formats (computerized blank formats) while passing Order u/s.107 of Cr.PC. Hence, it is just and necessary to re-iterate that, such type of Order causes hazardous not only to the persons against whom the proceedings are initiated, but also to the complainant who go before the TEM seeking relief under the said provision. Therefore, it is just and necessary for this Court to direct the State Government once again to take appropriate steps to train all the Taluka Executive Magistrates, who are in the habit of passing the Orders in a very casual and callous manner without applying their mind and complying with the legal requirements 8 as contemplated under Section 111 of Cr.PC. If there is any deviation by the Taluka Executive Magistrates while functioning under the relevant provisions of the Cr.PC, the State Government shall not hesitate to take necessary and appropriate action against such Officers as per law.
7. The PSI of Varthur Police Station lodged a complaint against the petitioner herein requesting the TEM to initiate proceedings under Section 107 of Cr.PC. In this background, it is just and necessary to come back to the factual matrix of this case. The facts are as follows: The petitioner is the Chairman of the School by name “VIBGYOR HI” situated at Tubarahalli. There was an incident of rape in the said School and the police have registered a case in Cr.No.155/14 under Section 376 read with Section 202 of IPC and Section 4, 6 and Section 21(1) (2) of Protection of Children from Sexual Offences Act 2012 (“POCSO” Act for short). The 9 petitioner was also arrested and released on bail. The complainant (father of the victim girl) in the said crime number has made an allegation that he has been receiving threatening calls. Therefore, the police have alleged that the petitioner may disturb peace or public tranquility near the house of the said complainant by name Piyush Ghosh. Therefore, the Police have requested the TEM to take appropriate action under Section 107 Cr.P.C. On the basis of the complaint lodged, the TEM has issued an Order/Communication dated 24.7.2014 impugned in this petition. The said complaint, as rightly contended, did not accompany with an Order u/s.111 of Cr.PC. Therefore, for all practical purposes, this notice has to be construed as an Order by the TEM. The order of the TEM is in Kannada vernacular with blanks left out, which is reproduced below: vÀºÀ²Ã¯ÁÝgï ºÁUÀÆ vÁ®ÆèPÀÄ PÁAiÀÄ𠤪ÁðºÀPÀ zÀAqÁ¢üPÁjUÀ¼À £ÁåAiÀiÁ®AiÀÄ, 10 ¨ÉAUÀ¼ÀÆgÀÄ ¥ÀƪÀð vÁ®ÆèPÀÄ, PÀȵÀÚgÁd¥ÀÄgÀ. ¸ÀASÉå: JA.J.eÉÃ/¹.Dgï/107 ¹.Dgï.¦.¹.)32/14-15 ¢£ÁAPÀ:
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9. It is worth to reproduce those provisions. “Section 107 Cr.P.C.: Security for keeping peace in other cases: (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may in the manner herein after 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. 13 (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrong full act as aforesaid beyond such jurisdiction. Section 111 of Cr.PC is mandatory in nature which reads thus – “111. Order to be made - When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such Section, he shall make an order in writing, setting forth the substance of the information received, 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.” (Emphasis supplied) 14 The above said provisions are mandatory direction to be strictly and meticulously followed by the TEM in order to act u/s.107, 108, 109 and 110 of Cr.PC. in the given circumstances under the said provisions.
10. Before passing such an Order, the TEM has duty bound to pass an Order in writing u/s.111 of Cr.PC specifically setting forth the substance of information received, the amount of bond to be executed, the term for which it is to be in force, and the number, character and class of sureties required to be furnished by the petitioner. In this particular case, it appears the computerized format does not even contain any factual matrix of this particular case. He has to specifically mention as to how he has received such information and how he haas satisfied that there was an apprehension for breach of peace in a particular place.
11. Section 107 of Cr.PC also clearly indicates that the TEM while passing an Order after receiving 15 information, he must satisfy himself that any person is likely to commit breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of the opinion that there is sufficient ground for proceeding, then only he may pass an Order u/s.111 of Cr.P.C. These legal requirements have virtually thrown to the wind by the TEM in utter disregard to the contents of Section 107 and 111 of Cr.PC. But, in this case such an act of the TEM not be encouraged and the same has to be deprecated. Further, added to that in the Order, the satisfaction of the TEM is also not mentioned and he has also not mentioned the amount of the bond to be executed and the term for which the Order shall be in force and the number, character of the sureties. Therefore, the above said Order/Communication issued by the TEM calling upon the petitioner to appear before him is illegal and the same is liable to be quashed. 16 12. Before parting with this Order, I feel it I just and necessary to recollect that in spite of issuing direction by this Court in several occasions, the TEMs. are repeatedly passing such type of illegal Orders. As I have already narrated that it is not only causing harassment to the persons against whom such proceedings are initiated but also it will take away the valuable right of the complainant who go before the TEMs. for the remedies under the said provision. Therefore, the Government has to take serious view on this particular point and they have to hold seminars, refresher courses to enlighten the TEMs. as to how they have to invoke provision under section 107 of Cr.PC and what are the legal requirements to be followed before passing such order under the said provision. In spite of issuing such circulars and directions by the Government, if the TEMs. continue to pass such type of Orders deliberately, the Government should not hesitate to take action against such Officers in accordance with 17 law. For the aforesaid reasons, in my opinion, the entire proceedings pending before the TEMs. deserves to be quashed. Accordingly, the petition is allowed. The entire proceedings in Case No.MAG/CR/107-CRPC/32/14-15 dated 24.7.2014 are hereby quashed. Office is hereby directed to send a copy of this Order to the Chief Secretary to the Government in order to circulate the same to all the Taluka Executive Magistrates, who are empowered to exercise powers under Section 107 and 111 of Cr.P.C., and also hold Seminars, Workshops often to educate the concerned officers. PL SD/- JUDGE