Sundaramurthi v. State Rep By The Executive
In the High Court of Judicature at Madras Dated : 03.01.2018 Coram :
The Honourable Mr.Justice R.SURESH KUMAR WRIT PETITION No.34157 of 2017 & W.M.P.No.37949 of 2017 Sundaramurthi
...Petitioner
-Vs1. State rep. By The Executive Magistrate-cum- Deputy Commissioner of Police, Ambattur, Chennai 600 054.
2. The Inspector of Police, Law and Order, T-10, Thirumullaivayal Police Station, Chennai 600 062.
...Respondents
PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorari calling for the records relating to the impugned notice issued by the first respondent in proceedings in C.No.947/Sec.Pro/DCAmb/2017, dated 28.11.2017 and quash the same.
For Petitioner : Ms.E.Angayarkanni For Respondents : Mr.S.Babu, G.A.
O R D E R
The prayer sought for in this writ petition is for a Writ of Certiorari calling for the records relating to the impugned notice issued by the first respondent in proceedings in C.No.947/Sec.Pro/DCAmb/2017, dated 28.11.2017 and quash the same.
2. Mr.S.Babu, learned Government Advocate takes notice for the respondents and by consent of both sides, the main writ petition itself is taken up for final disposal at the admission stage.
3.It is the case of the petitioner that, he is the President of Thamizhar Viduthalai Kazhagam which has been functioning for
the past several years, to eradicate the communalism and to eliminate the evil in discriminating the people, in the name of caste and to bring the social harmony in the society. It is the further claim of the petitioner that, the said organization is an non-political organization and the petitioner is one of the active participants in the said organization. The petitioner and his organization are carrying on agitations and struggles in a democratic manner for the welfare of the society and they have not involved in any illegal activities.
4. It is the further claim of the petitioner that in view of the struggle and agitations carried on by the members of the said organization thereby, the demand they make for a complete prohibition and for demand of cauvery related issues and also for fisherman issues, the second respondent has developed personal animosity and attempted to brand up the local office bearers of the above organization, as rowdy elements by compelling the petitioner and other office bearers to receive the order under Section 107 of Criminal Procedure Code.
5. Whileso, on 28.11.2017, the first respondent served a show cause notice dated 28.11.2017 under Section 111 of Cr.P.C. calling for explanation within fifteen days, from the petitioner as to why he cannot be asked to execute a bond for Rs.10,000/- with two sureties and to be enquired under Section 107 of Cr.P.C., for the simple reason that he is the President of the said organization.
Challenging the said notice dated 28.11.2017, issued by the first respondent, the present writ petition has been filed.
6. I have heard Ms.E.Angayarkanni, learned counsel appearing for the petitioner, who made submissions in support of the petition that the said impugned notice ought not to have been issued against the petitioner.
7. However, Mr.S.Babu, learned Government Advocate (Crl.side) would submit that, pursuant to the impugned show cause notice, the petitioner had given his detailed reply on 14.12.2017 and in fact, the learned Government Advocate has produced the file wherein, the said reply dated 14.12.2017 submitted by the petitioner is found.
8. Therefore, the learned Government Advocate would submit that since the petitioner has chosen to reply to the impugned show cause notice, he cannot challenge the same before this court, and he would further state that the respondent would consider the said reply given by the petitioner and decide the issue, on merits and in accordance with law.
9. I have considered the said submissions made by both sides.
10. Under Section 111 of the Code of Criminal Procedure, the 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 can be made.
11.Here in the case in hand, invoking Section 111 of Cr.P.C., the present impugned show cause notice has been issued by the second respondent, directing the petitioner to show cause, why a bond for a sum of Rs.10,000/- for the one year period shall not be executed by the petitioner.
12. Further, the case of the petitioner is that there is no adverse report noticed by the respondent for the purpose of notice under Sections 107 to 110 of Cr.P.C., and therefore, the consequent notice, which is impugned herein, under Section 111 ought not to have been issued.
13. Since the power is vested with the Magistrate i.e., first respondent herein, in order to ensure law and order, public peace and tranquillity in a particular locality, he could invoke the power of demanding a bond for a particular sum for a particular period from any person on whom such apprehension is available with the respondent. However, without any basis or without any necessity for such invocation of the code as referred to above, if any notice is issued, demanding a citizen to execute a bond for a period, the same can be resisted by such citizen by giving his contention by way of reply. In this case, since such a stand has been taken by the petitioner that the very invocation of Section 111 itself was unjustifiable, he has chosen to reply to the respondents. But so far the said reply has not been considered or is under consideration.
14. In this regard, whenever there is notice under Section 111 of Cr.P.C. is made demanding execution of bond, the procedure to be contemplated under the Code shall be scrupulously followed by the Magistrate concerned. Here in the case, since the petitioner has raised a dispute that there is no scope for issuance of such notice, under the provision of the code itself even that issue also can be considered and decided by the Executive Magistrate, i.e., the first respondent herein, based on the reply given by the petitioner on 14.12.2017.
15. Therefore, I am of the considered view that the present show cause notice, which is impugned herein dated 28.11.2017,
cannot be challenged before this Court at this juncture, that too after having chosen to give reply to the first respondent.
16. Hence, the prayer sought for in this writ petition cannot be granted and therefore, the writ petition fails.
17. However, since it is a definite case of the petitioner that he is only a member of an organization and which is involved in the activities for implementation of total prohibition in the State, which is one of the legitimate purpose for which, any citizen can raise his voice in a peaceful manner democratically, and in that case, the same cannot be curtailed by any court of law or by any authority. However, under the guise of such agitations or moment no one can take the law in their hands vulnerable or being the route cause to the deterioration of law and order and public peace and tranquillity in a particular locality. The aforesaid issues have to be decided only by the Executive Magistrates as per the powers conferred on them under the code.
Therefore, this Court feels that based on the reply given by the petitioner, the first respondent shall consider the same and take an appropriate decision at the earliest. It is made clear that before taking such a decision the first respondent, shall give an opportunity of personal hearing to the petitioner and in this regard, a prior intimation to be made by written communication properly to be served on the petitioner and accordingly, such personal hearing can be conducted based on which, final decision can be arrived at.
18. With this observation, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
s/d- Assistant Registrar(CS IX) True Copy Sub-Assistant Registrar smi To
1. The Executive Magistrate-cum- Deputy Commissioner of Police, Ambattur, Chennai 600 054.
2. The Inspector of Police, Law and Order, T-10, Thirumullaivayal Police Station, Chennai 600 062.
+1 cC to Govt. Pleader sr 819.
+1 CC to Ms.E. Angayarkanni, Advocate sr 271. W.P.No.34157 of 2017 SP(25/01/2018)