1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.12351 of 2011 and M.P.(MD) Nos.2 and 3 of 2011 1.Soundrapandian 2.Ganesan 3.Murugan 4.Mani 5.Jothi Tamilarasan 6.Mariappan 7.Nithiya Jeevan 8.Kanagaraj 9.Muthumaran 10.Vigneswaramoorthy : Petitioners -Vs- 1.The Revenue Divisional Officer cum Sub Divisional Magistrate, Arupukkottai, Virudhunagar District. 2.The Sub Inspector of Police, Arupukkottai Taluk Police Station, Virudhunagar District. : Respondents PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the proceedings in A2.M.C.230-07 on the file of the Revenue Tahsildar and Executive Magistrate, Arupukkottai, Virudhunagar District, pending disposal of the Criminal original petition. For Petitioner : Mr.G.Marimuthu For Respondent : Mrs.S.Prabha G.A. (Crl. Side) O R D E R This petition is filed to call for the proceedings in A2.M.C.230-07 on the file of the Revenue Tahsildar and Executive Magistrate, Arupukkottai, Virudhunagar District, pending disposal of the Criminal original petition. 2.The learned counsel appearing for the petitioner would submit that the 1st respondent/Executive Magistrate has initiated 107 Cr.P.C. proceedings against A and B Party and the petitioners are the members of B Party. He would further submit that in the same and single proceedings A and B party cannot be tried jointly and hence, the 1st https://hcservices.ecourts.gov.in/hcservices/ 2 respondent clubbed both A and B Party jointly is illegal and under Section 111 of Cr.P.C., the 1st respondent has to say the nature, character and class of sureties in the impugned notice and the above facts are missing in the impugned notice. He would further submit that the 1st respondent has not applied his mind on the facts submitted by the authority and on the subjective satisfaction only, he should issue notice to the parties and in the case on hand, the 1st respondent has not applied his mind and arrayed the subjective satisfaction. 3.The learned counsel appearing for the petitioners would further submit that Sections 107 and 111 Cr.P.C. give power to the Executive Magistrate to receive bond from the parties for the period of one year and the close reading of the provisions would show that the Executive Magistrate is duty bound to complete the proceedings within the period of one year and bond executed by the parties would also apply to the period of one year, but, here, the 1st respondent issued notice to the petitioners only on 12.07.2007 and he does not complete the proceeding even after the period of one year and hence, he has come forward with the present application for quashing the proceedings against the petitioners. To substantiate his argument, he relied on the decision of this Court in Palani and others Vs. Inspector of Police, Pudhukottai P.S., Thoothukudi District and others reported in (2006) 2 M.L.J. (Crl.) 72. 4.Heard the learned Government Advocate (criminal side) appearing for the respondents. 5.I have considered the submissions made on either side and perused the materials available on record. 6.The 1st respondent has initiated proceedings under Section 107 Cr.P.C. proceedings and he issued notice against 'A' and 'B' parties and they were directed to execute a bond for Rs.1,000/- as per Section 111 Cr.P.C. At this juncture, it is appropriate to incorporate Sections 107 and 111 Cr.P.C., which would run thus: “107 Cr.P.C.. (1) When an Executive Magistrate receives information 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 and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show case 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. (2) Proceedings under this section may be taken https://hcservices.ecourts.gov.in/hcservices/ 3 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 tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction. 111 Cr.P.C. 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, settring 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.“ 6.At this juncture, it is appropriate to consider the decision of this Court in Palani and others Vs. Inspector of Police, Pudhukottai P.S., Thoothukudi District and others reported in (2006) 2 M.L.J. (Crl.) 72,, wherein, this Court has held as follows: “It has been held in (Somasundaram and ten others V. The Revenue Divisional Officer, Dharapuram and another) 2002(1) CTC 72. The relevant portion of the said decision is extracted below: “6.An order passed under Section 111 of Cr.P.C. has to satisfy a double test: (a) It must set forth the substance of the information received as well as the amount of the bond to be executed, the terms of which it is to be in force and the number, character and class of sureties (if any required); (2) Besides, the order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under Section 107 of Cr.P.C. for preservation of peace and order. In the present case, as already seen the orders passed under Section 111 of Cr.P.C. do not set forth the substance of information received by the Sub Divisional Magistrate and the nature of the case the petitioners have to meet before entering appearance. Lack of information in the show cause order had caused prejudice to the petitioners, since they were not in a position to challenge the same. 7.The Sub-Divisional Magistrate has to satisfy himself about the need to issue a show cause order and the order must reflect the application of mind by the Magistrate to the https://hcservices.ecourts.gov.in/hcservices/ 4 facts placed before him. The impugned orders do not indicate application of mind by the Magistrate and they do not satisfy the double test much less any one of them and hence are liable to be quashed.” It has been further held in (Thenmalaiyandi V. State), 1983 LW (Crl.) 313 wherein it has been held as follows: “The first is that the learned Magistrate has passed a common order against the members of the two parties and called upon them to face a joint enquiry. This is clearly not in accordance with law. It has to be pointed out that under Sub-Section (5) of Section 116, Cr.P.C. a joint enquiry can be held only in respect of members or association of the same group; but not against the member of two rival groups” 7.Considering the said provisions along with the decision and the notice, the notice has been issued to both 'A' and 'B' parties and the particulars contemplated under Section 111 Cr.P.C. has not been followed and hence, in view of the settled position of law, I am of the view that the notice issued by the 1st respondent is not in accordance with law and it is liable to be quashed. 8. Accordingly, this criminal original petition is allowed and impugned notice is quashed. However, the 1st respondent is at liberty to issue fresh notice in accordance with law. Consequently, connected miscellaneous petitions are closed. Sd/- Deputy Registrar(Writs) /True Copy/ Assistant Registrar To 1.The Revenue Divisional Officer cum Sub Divisional Magistrate, Arupukkottai, Virudhunagar District. 2.The Sub Inspector of Police, Arupukkottai Taluk Police Station, Virudhunagar District. 3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.G.Marimuthu, Advocate, Sr.No.33004 Crl.O.P.(MD).No.12351 of 2011 23.09.2011 arul/sma/18.10.2011/5c/4p https://hcservices.ecourts.gov.in/hcservices/