Full Judgment
M. Sadasivayya, J.
1. This revision petition is directed against a preliminary order dated 10-6-1968 made by the Sub-Divisional Magistrate, Margalore under Section 112, Criminal P. C. The petitioner in this Criminal Revision Petition was respondent No. 8 in that preliminary order. By that preliminary order, the present petitioner (along with others shown as the respondents in that order) has been called upon to show cause as to why he should not be ordered to execute a bond in a sum of Rs. 1,000 and to furnish two sureties each in a like sum, for keeping peace for a period of one year.
2. The main contention which has been urged by Mr. K. Shivashankar Bhat learned advocate appearing for the petitioner, is that the said preliminary order merely makes a citation of certain past incidents and that it does not contain any material, on the face of it, to show that the Magistrate had formed an opinion that there was sufficient ground for proceeding under Section 107, Criminal P. C,
3. So far as the present petitioner is concerned, the only fact which had been cited against him is that the petitioner was a acted rowdy who was the head of a gang which had taken active part in the communal trouble in Mangalore and was responsible for acts of hooliganism.
The preliminary order has been read out before me, by the learned Counsel. It would appear from the citation in that preliminary order that information had been laid by the Circle Inspector of Police Mangalore Circle before the Magistrate, that from the incidents which had taken place on the 18th, 19th and 20th April, 1968 there was the likelihood of the respondents committing breach of the peace. But, as contended by Mr. Shivashankar Bhat, there is nothing in this preliminary order to show that on the said information which had been placed by the Circle Inspector of Police, the Magistrate formed an opinion that there was sufficient ground for proceeding under Section 107 of the Criminal P.C . In the absence of material to show that the Magistrate had formed such an opinion, he could not proceed under S, 107 of the Criminal P. C. to make a preliminary order under Section 112 of the Criminal P. C. When on the face of it the preliminary order does not show that the Magistrate was of the opinion that there was sufficient ground for proceeding under Section 107 of the Criminal P. C, that order stands vitiated. In a decision of this Court which has been reported in 1966-1 Mys L J 260, Dodde Gowda v. State of Mysore, Santhosh, J., after referring to a Full bench decision of the Madras High Court AIR 1940 Mad 23 has stated as follows:
The said decision states that action taken under Section 112, Criminal P.C., constitutes a judicial act and therefore the Magistrate should not act arbitrarily. There must be information of a nature which convinces him that there is 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. While there must be something more than the past misconduct of the persons proceeded against to justify a notice being served upon him, the Code does not require the information to show the particular act which is in contemplation at the time. The Magistrate must be satisfied that there is a likelihood of a breach of the peace. What will satisfy him must depend on the particular facts of the case.
Therefore, there must be something more than mere past misconduct of the person sought to be proceeded against and the Magistrate must he satisfied that there is a likelihood of the breach of the peace.
4. In the absence of any material on the face of that preliminary order, to show that the Magistrate had been satisfied that there was a likelihood of the breach of the peace being caused by the present petitioner, the preliminary order, in so far as it relates to the petitioner, cannot be sustained. This revision petition is allowed and the preliminary order in so far as it pertains to the present petitioner is set aside.