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

Excerpt:
- constitution of india -- article 226: [ram mohan reddy,j] writ of quo warranto - election to membership of gram panchayat - second respondent, contested the election - production of bcm b caste certificate - false claim made by the second respondent that he belongs to bcm b category, though he belonged to bcm a category - cancellation of the caste certificate issued to the second respondent prayer for a writ of quo- warranto to oust the second respondent from the post of member of the gram panchayat held, reservation, is a part of constitutional scheme with the object of betterment of backward classes. therefore, if, a person who does not belong to a particular backward class for which the elective office is reserved, and masquerades as a person belonging to said category and gets elected to the reserved office, it cannot but be said that such an act not only constitutes violation of statutory provisions of the panchayat raj act but also a fraud on the constitution. on facts, held, the petitioners have established beyond doubt that the second respondent who belongs to bcm a category played a fraud by making a false claim that he belongs to bcm b category and got elected as a member of the first respondent-gram panchayat from ward no.1 which was reserved for bcm b category. further, the petition filed for issue of writ of quo warranto against the second respondent is not barred by article 243-zg of the 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.orderm.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.

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.