ORDER
P.K. Misra, J.
1. Some of the members of second party in a proceeding under Section 107 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) initiated by the Executive Magistrate, Ranpur, numbered as Criminal Misc. Case No. 48 of 1994 have filed this application under Section 482 of the Code praying for quashing the proceeding.
2. The petitioners have filed a copy of the notice served on petitioner No. 2 as Annexure-1 and contended that an order has been passed mechanically by the Executive Magistrate calling upon the second party members to show cause without explaining the substance of information and without furnishing a copy of the information. It is contended that the proceeding has been initiated without application of judicial mind and without making an inquiry into the matter. It is also contended that the notice which was served on petitioner No. 2 was a cyclostyled one and this indicates the lack of application of mind on the part of the Executive Magistrate: In support of his contention, the learned counsel has placed reliance on the decisions of this Court reported in (1987) 63 CLT 10 : (1988 Cri LJ 286) (Bairagi Charan Jena v. State of Orissa) and (1987) 64 CLT 273 : (1988 Cri LJ 218) (Rama Chandra Jana v. Muralidhar Onjha).
3. Section 107(1) of the Code reads as follows:-
107. Security for keeping the 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 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 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.
A perusal of the aforesaid provision makes it clear that the jurisdiction under Section 107 is to be exercised to prevent breach of the peace. The object of Section 107 which may culminate in an order under Section 117 is preventive and not punitive. The Magistrate can proceed under Section 107(1) if he is of opinion that there is sufficient ground for proceeding on the basis of information received by him that any person is likely to commit breach of the pence or disturb the public tranquillity. The information before the Magistrate on the basis of which he can act may be a police report or a petition by a private person. It is, however, clear that the Magistrate concerned must be satisfied about the necessity and desirability of proceeding under Section 107. The jurisdiction conferred by Section 107 has to be exercised in accordance with the other relevant provisions as indicated in Sections 111 to 116 and ultimately if (he Executive Magistrate is satisfied, he may direct the parties to execute bond with or without sureties in accordance with Section 117.
Section 111 which is relevant for the present purpose is extracted hereunder:-
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.
From the provisions contained in Section 111, it is clear that if the Magistrate deems it necessary for any person to show cause under Section 107(1), he should make an order in writing inter alia, setting-forth the substance of the information received. Thereafter the Magistrate has to adopt the procedure laid down in Section 112 or Section 113, as the case may be. If the person in respect of whom such proceeding is initiated is present in Court, the procedure indicated in Section 112 may be followed. In other cases, the procedure under Section 113 is to be followed.
Section 113 of the Code, which is relevant for the present purpose, is as follows :-
113. Summons or warrant in case of person not so present.-
If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court:
Provided that….
Thus, the Magistrate has to issue summons requiring the person concerned to appear. Section 114 lays down that every summons or warrant under Section 113 should be accompanied by a copy of the order made under Section 111 and such copy should be delivered to the person concerned. After complying with the aforesaid provisions, the Magistrate has to inquire as to the truth of the information in accordance with the provision of Section 116.
4. In the present case, the petitioners have approached this Court at the threshold after service of summons on petitioner No. 2 challenging the validity of the proceeding as well as the notice. The impugned notice is as follows :-
Whereas it appears from the report of police in that you are all the 2nd. party members are violating the breach of peace in the locality endangering the life of the 1st. party members and disturbing the peace of tranquillity;
I, Sri Chatrubhuja Mallick, O.A.S., Executive Magistrate, Ranpur, being satisfied direct the appearance of the 2nd party members or through their advocate positively on 9-12-1994 at 10 a.m. to file show cause as to why an absolute order will not pass against you to execute a bond of an amount of Rs. 1,000/- each for not exceeding one year to maintain public peace and tranquillity within my jurisdiction of Ranpur.
It has been asserted that apart from the notice as contained in Annexure-1, no other order had been served and there was no other material accompanying the notice explaining the substance of information. It is also asserted that copy of the information on the basis of which the Magistrate thought it fit to initiate the proceeding was also not sent along with the notice. For the purpose of this case, and. in the absence of any other material on record, I proceed on the assumption that except the notice under Annexure-1, which has been extracted above, no other order or information or document had been communicated.
5. The first contention of the learned counsel for the petitioners relates to the validity of the initiation of the proceeding itself. It has been argued by the learned counsel that the proceeding has been initiated without application of judicial mind and without making an enquiry into the matter. The order dated 25-11-1994 indicates that the proceeding has been initiated on the basis of Non-FIR submitted by the Officer-in-charge. Ranpur Police Station. The aforesaid Non- FIR No. 45/94 is on record, wherein various details have been given as to why the Officer-in-charge recommended for initiation of proceeding under Section 101. The order dated 25-11-1994 itself records the satisfaction of the Magistrate that there was a chronic dispute in the village relating to opening of a College and there was apprehension of breach of peace. A perusal of the order dated 25-11-1994 clearly indicates that the Magistrate concerned has applied his mind and decided to proceed under Section 107, of course, only on the basis of the report of the police. The Code nowhere contemplates that before deciding to proceed on the information received, the Magistrate is duty bound in law to make a preliminary inquiry. In a given case, the Magistrate may deem it prudent to conduct some preliminary inquiry before initiating proceeding under Section 107 on the basis of information received depending upon the facts and circumstances of such case. As already indicated, such a proceeding can be initiated on the basis of information furnished by the police or even a private party. If the Magistrate thinks it fit to proceed only on the basis of a police report without making any preliminary inquiry, it cannot be said that the order of the Magistrate is vitiated. The very purpose of initiation of proceeding under Section 107 may be thwarted if it is laid down as a matter of law that in each and every case, the Magistrate has to conduct an inquiry regarding the information received before deciding to proceed under Section 107. The jurisdiction vested in a Magistrate to act under Section 107 of the Code is to be exercised in emergent situations and it may not be advisable to formulate any strait-jacket principle circumscribing the discretionary power of the Magistrate. My aforesaid view derives sustenance from several decisions of this Court, such as 1994 (2) OLR 455 (Jairam Mohanty v. Bhagaban Pradhan); (1993)6OCR 166(Raghunath Makap v. Gopinath Petre) and (1989) 2 OCR 76 : (1989 Cri LJ 1872) (Babaji Sahoob v. State of Orissa).
6. In some decisions of this Court, it has been assumed to be the settled position of law that before proceeding under Section 107 of the Code, the Magistrate must make an inquiry into the information received. In 1987 (1) OLR448 (Harekrushna Singh v. Kailash Ch. Beura) Hon’ble Shri D.P. Mohapatra, J. (as his Lordship then was) observed :-
…The position of law is well-settled that though the matter of initiation of proceeding under Section 107 of the Code is at the discretion of the Magistrate, such discretion should not be exercised mechanically and should not be based solely on police report. The Magistrate should conduct some independent enquiry or receive some information from an independent source before recording his opinion about existence of sufficient ground for proceeding. How ever, in the present case the second aspect does not arise for consideration since, as noticed earlier, the Magistrate did not record in the order that he was of the opinion that there was sufficient ground for proceeding against the petitioners.
It is thus evident that the observations had been made casually as the learned Judge had quashed the proceedings not on the ground that enquiry had not been held, but on the ground that the Magistrate had not recorded requisite satisfaction. As a matter of fact, the very same learned Judge in his subsequent decision reported in (1989) 2 OCR 76: (1989 Cri LJ 1872) (supra) had observed that it is not necessary in each and every case to conduct an enquiry before proceeding under Section 107 of the Code.
In 1991 (2) OLR 75 (Rabi alias Rabindranath Biswal v. Rankanath Pradhan), which has been subsequently followed in (1994) 7 OCR 260 (Kelu Naik v. Kanduri Nayak) arising out of a proceeding under Section 107 of the Code on the basis of petition of a private individual, it was observed :-
…It is now settled by a series of decisions of this Court that before action under Section 107, Cr. P.C. is initiated, the Magistrate is obliged to hold an enquiry to satisfy himself regarding existence of materials justifying action and that he can neither act on a mere police report or only upon a private complaint….
The aforesaid observation purports to be based on the observations made in AIR 1971 SC 2486 : (1971 Cri LJ 1720) (Madhu Limaye v. Sub-Divisional Magistrate, Monghyr) and 1972 (2) CWR 1242 (Adikanda Sahu v. Kasiram Rout). As a matter of fact, in AIR 1971 SC 2486, it was nowhere laid down as an inexorable rule that before deciding to proceed under Section 107 of the Code, the Magistrate is bound, in every case, to hold an enquiry to satisfy himself regarding the existence of material justifying action under Section 107 of the Code. The majority decision in the said Supreme Court case did not lay down any such principle as apparent from the following observation in paragraph 33 :-
…The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is likely lo 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….
With respect, I may state that the learned single Judge referred to paragraph-52 of the decision which was a separate view of Hon’ble Bhargava, J. It was erroneously assumed that separate view of Hon’ble Bhargava, J. was the ratio of the decision in AIR 1971 SC 2486: (1971 Cri LJ 1720) (supra). The learned single Judge had also referred to 1972 (2) CWR 1242 as laying down similar principle. The decision reported in 1972 (2) CWR 1242 (supra) arose out of a suit for damages due to wrongful initiation of proceeding under Section 107 of the Code. It was observed in the said case :-
…The language of this Section 107 clearly indicates that the S.D.M. is not to act automatically on. receiving an information but is vested with the discretion to satisfy himself that there is sufficient ground for proceeding. The method and manner of reaching such satisfaction is also left to his judicial discretion and the most obvious method is to hold a preliminary fact finding enquiry like the one envisaged in Section 202, Cr. P.C….
(Emphasis added)
For the aforesaid view, Hon’ble S. K. Ray, J. (as his Lordship then was) also relied upon the separate judgment of Hon’ble Bhargava, J. in AIR 1971 SC 2486: (1971 CriLJ 1720). The aforesaid decision in 1972 (2) CWR 1242 does not go to the extent as assumed in 1991 (2) OLR 75. The emphasised portion indicates that the Magistrate concerned, need not act automatically on receiving information, but is vested with the discretion to satisfy himself that there is sufficient ground for proceeding. It has been nowhere laid down that in each and every case, bereft of the nature and source of information, the Magistrate has to conduct an enquiry before deciding to proceed under Section 107 of the Code. With respect, if I am permitted to state so, it appears that the observations in 1991 (2) OLR 75 (supra) have been too widely stated. In fact, the same learned single Judge had in his earlier decision reported in (1987) 64 CLT 273 : (1988 Cri LJ 218) (supra) (at page 279) :-
…It is of course true that for initiating a proceeding under Section 107, Cr. P.C. and issue of notice under Section 111, Cr. P.C. to show cause against the execution of the bond, it is not necessary that the Magistrate must wait for a police report or that he cannot act only upon the information received from the persons who file the petition….
(Emphasis is mine)
7. Judged against the aforesaid back-drop of legal principle, the initiation of the proceeding on the basis of the report of the police without making any preliminary fact-finding enquiry cannot be characterised as illegal. The first contention of the learned counsel for the petitioners, therefore, fails.
8. It is next contended by the learned counsel for the petitioners that the notice which was served on petitioner No. 2 was vague and not in accordance with the provisions of Sections 111, 113 and 114 of the Code. So far as this aspect is concerned, a perusal of the order dated 25-11-1994 indicates that, in fact, the Magistrate has passed an order in accordance with Section 111 setting-forth the substance of the information received as well as the other details as indicated in Section 111. However, the assertion of the petitioners that the notice sent under Section 113 was not accompanied by the order under Section 111 as required under Section 114 appears to be well-founded. Annexure-1, the notice, also does not contain the substance of the information received. Thus, it can be assumed that the notice has not been served containing the required details as envisaged under Sections 111,113 and 114. The question is whether on account of such defective notice, or summons, the proceeding itself, or even the notice, is to be quashed. In the decision reported in (1987)63 CLT 10 : (1988 Cri LJ 286) relied upon by the petitioners, the notices to the petitioners in that case were quashed on the ground that provision of Section 111 had not been complied with and it was further observed that it was open to the Executive Magistrate to take action according to law if the necessary conditions still existed. In the decision reported in (1987) 64 CLT 273 : (1988 Cri LJ 218), following the aforesaid decision in (1987) 63 CLT 10 : (1988 Cri LJ 286) the notice was quashed with observation that it was open to the Magistrate if the circumstances still existed to proceed in accordance with law. Though the earlier decisions of this Court reported in (1966) 32 CLT 515 (Dibakar Pradhan v. State).(1970)36CLT 954 :(AIR 1970 Orissa 184)(Mandalapu Sundar Narayan v. V.V. Chenulu) (1982) 53 CLT 38 : (1982 Cri LJ NOC 154) (Purnananda Behera v.Sunaker Singh) were referred to in (1987) 64 CLT 273 : (1988 Cri LJ 218), the learned Judge thought it fit to quash the notice on the ground that the exercise of power by the Magistrate was plainly an abuse of the process of the Court and on the further ground that such abuse of the process of the Court was being practised with impugnity as evidenced by the fact that cyclostyled notices had been issued. In none of these two decisions relied upon by the petitioners, the effect of Chapter-XXXV and more specifically Section 465 of the Code was considered. Section 465(1) reads as follows :-
465. Finding or sentence when reversible by reason of error, omission or irregularity.-
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
The irregularity in the service of summons in this case, does not have the effect of vitiating the proceeding. The revisional Court is not entitled to quash the order (or, in this case, the summons/ notice) unless it comes to the conclusion that the error or the irregularity has occasioned failure of justice. It is true that as required under Section 111, read with Sections 113 and 114, the copy of the order as envisaged under Section 111 should have accompanied the summons/notice. However, mere non-compliance with the aforesaid provisions did not have the effect of vitiating the proceeding itself. Instead of rushing to the High Court, the petitioners could have appeared before the concerned Magistrate and insisted upon compliance with Sections 111, 113 and 114. If inspite of their application, the Magistrate would not have furnished the required information or the required order, one could possibly have made a legitimate grievance before the revisional Court. Therefore, merely on account of non-compliance with the provisions of Sections 111, 113 and 114, I am not inclined to quash the summons/notice. With respect, I prefer to follow the Division Bench decision of this Court reported in (1970) 36 CLT 954 : (AIR 1970 Orissa 184), which has been subsequently followed, albeit, reluctantly in (1982) 53 CLT 38 : (1982 Cri LJNOC154).
In (1987) 63 CLT 10: (1988 Cri LJ 286), though the learned Judge referred to and extracted from para 18 of the decision in (1970) 36 CLT 954: (AIR 1970 Orissa 184), he lost sight of the fact that in the said case, in fact, neither the notice nor the proceeding itself had been set aside and only the order of the Magistrate calling upon the delinquent to execute interim bond was quashed. In the following sub-paragraph of para 18, it was stated :-
On the facts of this case, we are of opinion that the Magistrate was not justified in calling for execution of interim bonds. The proceeding under Section 112 cannot however be quashed.
(Emphasis is mine)
Unfortunately, the aforesaid sub-para as well as the ordering portion as contained in para 19 were lost sight of by the learned Judge.
In (1987) 64 CLT 273 : (1988 Cri LJ 218) the decisions reported in (1970) 36 CLT 954 : (AIR 1970Orissa 184) as well as (1982) 53 CLT 38:1982 Cri LJ NOC 154, were noticed, but the learned Judge preferred to quash the notice on the ground that the Magistrate had abused the process of the Court. Apparently, the learned Judge concluded as above, as he found that the notices had been issued in cyclostyled form which according to the learned Judge indicated lack of application of judicial mind. With respect, I venture to observe that the statutory form prescribed in Form No. XIV in the second schedule appended to the Code was lost sight of. The said Form No. XIV is meant for issuing summons in accordance with Section 113 of the Code and it is but natural that while issuing such summons to a number of persons, the cyclostyled form has to be utilised. Of course, it is true that in the form itself, it is required that the substance of the information should be indicated. In fact, the order under Section 111 requires that the substance of the information should be indicated and if the said order is sent along with the summons as envisaged under Section 113 read with Section 114, there will be sufficient compliance with the requirement of law. Form No. XIV and for that matter all the forms as contained in Second Schedule having been prescribed under Section 476 of the Code are statutory in nature. Therefore, merely because the summons had been issued in a cyclostyled form should not have been taken to be a ground for vitiating the notice served in a particular case without keeping in view the provisions of Chapter XXXV as well as the pronouncements made in earlier decisions including the Division Bench decision reported in (1970) 36 CLT 954: (AIR 1970 Ori 184). The ratio of the decision in (1987) 64 CLT 273 :(1988 Cri LJ 218) is thus not applicable in each and every case and must be confined to peculiar facts of that case. I may add that ratio of (1970) 36 CLT 954 : (AIR 1970 Orissa 184) on this aspect is not diluted by the fact that the principle contained therein relating to execution of interim bond under Section 116(3) has been impliedly overruled in AIR 1971 SC 2486 : (1971 Cri LJ 1720) (Radhu Limaye’s case).
9. Taking a clue from the decision in (1982) 53 CLT 39, it was submitted as a last resort that since more than a year has elapsed in the meantime, there may not be any further necessity to continue the proceeding under Section 107 of the Code. I am afraid, on the facts of this case, the observations made in paras 5 and 6 of the decision in (1962) 53 CLT 38: (1982 Cri LJ NOC 154), may not rescue the petitioners. The petitioners of that case had filed an undertaking not to endanger public peace and tranquillity and had virtually bound themselves down for about one year pursuant to an interim order of the High Court and there was no report or allegation that they had committed any overt acts or had violated the terms of the undertaking as evident from the observations made in para 5 of the decision. Such is not the case here. In the present case, the further proceedings had been stayed and the matter has lingered on in the High Court for more than one year. If the procedure adopted in (1982) 53 CLT 38 : (1982 Cri LJ NOC 154) is to be followed, in each and every case arising from a proceeding under Section 107, the person concerned would obtain a stay order, linger the case and thereafter seek similar relief as was granted in the said case. Therefore, while declining to accept the aforesaid prayer of the petitioners, I, however, direct, as was done in (1993) 6 OCR 166, that the Magistrate may take into account this aspect of the matter and consider as to whether in the changed circumstances due to passage of time, the proceeding should continue further. It is made clear that in case the Magistrate decides to continue the proceeding, he must now comply with the requirements under Sections 113 and 114 of the Code and give opportunity to the persons concerned to show cause only after supplying the copy of the order under Section 111 as well as furnishing the substance of the information received.
Subject to the aforesaid observations, the Criminal Misc. case is dismissed. The lower Court records be sent back immediately.
I must place on record the sincere efforts made by Shri S.K. Nayak, Additional Standing Counsel in bringing to my notice all the relevant decisions.
