A.John Victor, v. The Revenue Divisional Officer

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.11.2016

CORAM:

THE HON'BLE DR.JUSTICE S.VIMALA W.P(MD) Nos.13580 and 13585 of 2016 and WMP(MD)Nos.10127,10129 & 10130 of 2016 1.

A.John Victor ... Petitioner in W.P.(MD) No.13580/2016 2.

Darbello Cristus ... Petitioner in W.P.(MD) No.13585/2016 -vs1. The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District.

2. The Inspector of Police, Palukal Police Station, Kanyakumari District.

3. Iyyappan ... Respondents in W.P.(MD) No.13580/2016

1. The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District.

2. The Inspector of Police, Kaliyakkalvilai Police Station, Kanyakumari District.

3. Natarajan ... Respondents in W.P.(MD) No.13585/2016 Common Prayer: Writ Petitions filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records on the file of the 1st respondent pertaining to its order bearing No.A2/M.C.O1/2016, dated 25.07.2016 and to quash the same.

For Petitioners :

Mr.Chamundi Bose (in W.P.(MD)13580/2016) Mr.Issac Mohanlal, Senior Counsel For Mr.S.C.Herold Singh (in W.P.(MD)13585/2016) For R1 & R2 :

Mr.D.Muruganandam Addl. Govt. Pleader For R3 :

Mr.Suresh Kumar (in W.P.(MD)13585/2016) No Appearance in W.P.(MD)13580/2016 Orders Reserved on :

18.08.2016 Orders Pronounced on :

07.11.2016

C O M M O N O R D E R Unless the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at the hands of the authority is disclosed in the show cause notice whether it is possible to the person asked to show cause to respond to the show cause notice?

Where the dispute is essentially between the neighbors in a property, whether there is justification to issue show cause notice merely based upon the First Information Report prepared by the Police?

Raising these two issues, these writ petitions have been filed.

The petitioners herein challenge the impugned order passed by the 1st respondent under which each of the petitioner was called upon to appear on 27.07.2016 at 11.00 a.m. to show cause as to why they should not execute a bond for a sum of Rs.5,000/- with two sureties each for a likesum and to maintain peace for a period of one year.

2. The impugned order reads that there was a dispute with reference to expansion of old prayer hall between two groups in respect of which a case has been registered in Crime Nos.127 of 2016 under Section 107 Cr.P.C.; on filing of this FIR, enquiry was conducted by the Revenue Divisional Officer; out of two groups allegedly involved, persons belonging to B groups were expanding the prayer hall and the persons belonging to "A" group raised objections for that; thus leading to not only law and order problem, but also breach of peace. The public became panic and towards establishing religious harmony and to allay the fear in the mind of the general public, a case was registered in Crime No.127 of 2016 under Section 107 I.P.C.

3. As the 1st respondent felt that there are sufficient grounds in the case registered against the petitioners and believing that there is likelihood of law and order problem arising, this show cause notice has been issued.

4.The legality of the impugned order is under challenge under the following grounds:

i) The petitioner John Victor is the Pastor of Galilee Gospel Ministries and he is conducting prayer at Property No.65/6 of Kuzhaganavillai, Palukal Village, Kanyakumari District. One David is the owner of the property; the petitioner is conducting the prayer with the permission of David/owner; later the petitioner purchased said property and put up a thatched shed and thereafter

he put up a building; people had been offering worship using the said premise; on 29.11.2013, a request was made to the 1st respondent for construction of a Church; as the permission was not granted, seeking writ of Mandamus, W.P.(MD) No.1652 of 2016 has been filed and the same is pending;

5.So far as the petitioner / Darbello Cristus is concerned, he is also Father and pastor of 'Our Lady of Mariyagiri'; he is conducting the prayer in the Church situated in S.No.231/5B, Kulapuram Village; after construction of building during 1976, the owner Rajammal executed a sale deed in favour of the Bishop on 29.11.2006 and in the Church, worship continued peacefully for the 40 years.

6.It is the case of the petitioners that the respective third respondents is interfering in the religious freedom of the public to offer worship in the place of their choice and the impugned order is one step towards preventing the petitioners from conducting the prayers peacefully. So alleging, these writ petitions have been filed.

7.In W.P.(MD)N0.13585 of 2016, counter affidavit has been separately filed by each of the respondents. In W.P.(MD)No.13580 of 2016, service awaited for third respondent. 8.As the issue to be decided is mainly on the question of law, the non service of notice on the third respondent is of no avail and the challenge is mainly to the impugned order passed by the Revenue Divisional Officer.

9.The first respondent has stated (a) as per Rule 6(4) of the Tamil Nadu Panchayat (Buildings) Rules 1997, prior permission of the District Collector is mandatory for the construction of places of worship; (b) Kanyakumari District being a communally sensitive District, certain restrictions have been imposed regarding location of place of worship; (c) G.O.Ms.No.916, dated 29.04.1986, issued on the recommendation of Justice Venugopal Commission, places of worship of different faith cannot be located in close proximity with each other. There had been previous dispute with reference to erection of Arch between Hindus and Christians leading to law and order problem. Problem started only after conversion of nursery school building into a place of worship against the Provisions of Tamil Nadu Panchayat (Buildings) Rules, 1997.

The first respondent did not initiate any proceedings at her own instance, but it was out of compulsion created by the circumstance. Security proceedings were initiated with bona fide intension of avoiding social unrest and communal violence. No final order has been passed. Misunderstanding the proceedings and without exhausting the options available, the petitioner has approached this Court.

9.1. The Provisions of Chapter 8, dealing with security for keeping the peace and for good behavior, is aimed at prevention of crimes and establishment of public tranquility and the action is preventive in nature. The preventive jurisdiction, a powerful adjunct to the executive authority will be salutary, only if used in moderation and not otherwise.

9.2. Proceedings under Section 107 are also initiated towards maintaining public peace and tranquility. Therefore, they are preventive and not punitive. Therefore, when there is purely a civil dispute between the parties, proceedings under Section 107 Cr.P.C. may not be appropriate. Similarly, if any substantive offence is committed, prosecution of the proposed accused is the suitable solution and not the proceedings under Section 107 Cr.P.C.

10. Two things are necessary to warrant an action under Section 107 Cr.P.C. (i)information should be laid before a Learned Magistrate and (ii)the Learned Magistrate should be satisfied that there was a sufficient ground for proceeding. The Learned Magistrate has no jurisdiction in contravention of the section.

11. Even though, the order to execute a bond before an offence is committed may appear to be an administrative order, it is really judicial in character. Detention is a result on default of execution of the bond.

12. It is the contention of the learned counsel for the petitioners, that the failure of the first respondent to test the correctness of the allegations made against the concerned persons is not correct and therefore, order calling upon them to show cause has no basis and therefore, it is illegal.

13. It is also the contention of the learned counsel for the petitioners that instead of directing the 3rd respondent, who is creating law and order problem preventing the petitioners as well as others in offering the worship, the 1st respondent has directed the petitioners to execute a bond.

14. Yet another contention is that the procedure laid down under Sections 107 and 111 Cr.P.C., has not been followed; no enquiry was conducted by the 1st respondent; the basis for the opinion that there exists sufficient ground to initiate proceedings against the petitioners is nowhere mentioned. Hence, the order is liable to be set aside.

14.1. So far as a notice issued invoking Section 111 Cr.P.C., is concerned, the contentions are as under:- i) Proceedings are initiated by a preliminary order made under section 111.

ii) The conditions which are required to be fulfilled under section 111 are;

i) a written order;

ii) substance of information against the person; iii) amount of bond;

iv) period for bond; and v) number, character and class of sureties.

15. Pointing out that the preliminary order under section 111 is the foundation of the jurisdiction of the Executive Magistrate and that not even a show cause notice is contemplated under Section 111 Cr.P.C., it is further pointed out that the enquiry contemplated is not a roving enquiry or full fledged enquiry, but at least a prima facie enquiry to the extent of getting satisfaction that the information furnished to the Executive Magistrate is correct.

15.1. In support of the contention, learned counsel for the petitioners relied upon the following decisions: i) 2008 Supreme (Del) 334, Asha Pant vs. State and others; "It would be incumbent upon the SDM to follow the steps envisaged in Section 107 strictly in accordance with the procedure outlined in the provisions of the CrPC set out thereafter. Such steps should be preceded by the formation of an opinion in writing by anLearned Magistrate which should be discernable when the decision is challenged in the Court. Such formation of the opinion should, normally, be based on some preliminary enquiry that should be made by an SDM to justify the formation of an opinion. Of course this cannot be straitjacketed since there may be cases where an SEM may to form an opinion right away to prevent the breach of peace or public tranquility.

However, that should be the exception and not the rule. For instance, as in the present case, where the dispute is essentially between the neighbors in a property, or between a landlord and tenant residing in the same premises, the notice under Section 107 CrPC should not be issued only upon a perusal of the Kalandara prepared by the police. Such a mechanical exercise without the SDM forming an independent opinion on the basis of some sort of a preliminary enquiry would render the exercise of the power vulnerable to being invalidated."

ii) Madhu Limaye vs. Sub-DivisionalLearned Magistrate, reported in 1971 AIR 2486;

"The section is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity. This is an instance of preventive justice

which the courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose Learned Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders 'but, as far as possible, the prevention of offences.

36. We have seen the provision of s. 107. That section says that action is to be taken 'in the- manner hereinafter--provided and this clearly indicates that it is not open to aLearned Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Learned Magistrate concerned. It behoves us, therefore, to emphasise the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the ,general public.

37. The Procedure begins with S.112. It requires that the Learned Magistrate acting under S.107 shall make an order in writing setting forth the substance of the information received, the amount of the bond, the term for which it is to, be in force and the number, character and class of sureties (if any) required. Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands. Although the section speaks of the 'substance of the information' it does not mean that the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Learned Magistrate to take the action.

This order is the foundation of the jurisdiction and the word 'substance' means the essence of the most important parts of the information.

there is sufficient ground for proceeding against him. The Learned Magistrate cannot start the proceedings merely because of the information received by him. Pursuant to the information, the Learned Magistrate has to form his opinion that there is sufficient round for proceeding. This opinion can be formed on the basis of the information supplied to him if he finds that the information is given in sufficient detail and is reliable enough to justify his acting on its basis. In cases where the information given is not of such nature, it will be the duty of the Learned Magistrate to hold further inquiry and satisfy himself that it is a fit case where action should be taken because sufficient grounds exist. There may be cases where the information may be received from the Police in which case the Learned Magistrate may examine all the Police papers and satisfy himself that there do exist sufficient grounds for him to take, the proceedings as requested by the Police."

iii) 1972 (2) SCCc 532 Ram Narain Singh and others vs. State of Bihar;

"Under section 107 of the Code of Criminal Procedure, a PresidencyLearned Magistrate, DistrictLearned Magistrate, Sub-divisionalLearned Magistrate orLearned Magistrate of the first class may require a person to show cause 740 why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period not exceeding one year as the Learned Magistrate thinks fit to fix, if such Learned Magistrate is informed that the said person is likely to commit breach of peace or disturb public tranquillity or to do any wrongful act that may occasion breach of peace, or disturb public tranquillity and if the Learned Magistrate is further of the opinion that there is sufficient ground for proceeding against that person. The underlying object of the section is preventive and not penal.

The section is designed to enable the Learned Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquillity. Wide powers have been conferred on the Learned Magistrates specified in this section and as the matter affects the, liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law."

16. In the background of the legal position cited supra, it is for this court to consider whether there are materials to show that the Learned Executive Magistrate could have formed some opinion that there is likelihood of breach of peace on account of the conduct of the petitioners.

17. The impugned order recites that the opinion formed by the Learned Magistrate is based upon the case registered by the Police under Section 107 Cr.P.C./107 I.P.C. In the impugned order in one place, it is mentioned as Section 107 Cr.P.C. in another place, it is mentioned as Section 107 I.PC. Section 107 Cr.P.C. deals with 'Power of the Learned Executive Magistrate and the procedure to be followed by the Learned Executive Magistrate to take security for keeping the peace'. Section 107 I.P.C. Deals with 'Abatement', i.e. under what circumstances, the conduct of the persons could amount to abatement either by instigation or by engaging in conspiracy or by intentional aid.

18. Section 107 I.P.C. is a section dealing with substantive offence. Section 107 Cr.P.C. deals with the power of the Learned Executive Magistrate and the manner in which the power should be exercised in order to establish public tranquility.

19. When a case itself has been registered against the petitioners under Section 107 Cr.P.C., it means that it implies total non application of mind by the Police Officer, who registered the case. There may be cases where a wrong provision of law is quoted by mistake, but action proceeds in a right direction, the Court normally do not find fault with that. But the initial mistake is carried forward in the subsequent action, then the implication of initial mistake becomes the subject matter of consideration.

20.When such a record is placed before the Learned Executive Magistrate, the further order being passed without even raising the issue as to how a case is registered using a provision which is irrelevant, then the order passed by the Learned Magistrate calling upon the petitioner to show cause based upon the irrelevant document, cannot be upheld.

21. When a person is called upon to show cause, there must be some materials providing for the apprehension regarding breach of peace and only then, the person would have the basis to respond. When such basics are lacking, the decry made by the first respondent that the Court is interfering in their effort to maintain public tranquility, cannot be helped out.

22. Towards supporting the allegations made in the counter affidavit filed, learned Additional Government Pleader relied upon a decision reported in 1996 Crl. LJ 2776, Ramesh Chandra Panda vs. State of Orissa, where-under, it has been held as under:

"5. The Code nowhere contemplates that before deciding to proceed on the information received, the Learned Magistrate is duty bound in law to make a preliminary inquiry. In a given case, the Learned 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 Learned 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 Learned 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 Learned Magistrate has to conduct an inquiry regarding the information received before deciding to proceed under Section 107. The jurisdiction vested in aLearned 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 straitjacket principle circumscribing the discretionary power of the Learned Magistrate."

23. There is no dispute over the proposition enunciated in the above decision that in case of emergency, the learned Learned Executive Magistrate can act upon the Police report and there is no necessity for an independent enquiry, though it is advisable to have the same. But the question is, what is the Police report to the learned Learned Executive Magistrate? and what is the basis on which proceedings were initiated against the petitioners? It is the case of the Police, a case was registered under Section 107 Cr.P.C. in crime No.127 of 2016; it is the case of learned Learned Executive Magistrate that this Police report registered under Section 107 Cr.P.C., is the basis for the subjective satisfaction of the Learned Executive Magistrate, as detailed supra.

24. The law contemplates that the Learned Magistrate cannot start the proceedings merely because of the information received by him. Pursuant to the information, the Learned Magistrate has to form his opinion that there is sufficient round for proceeding. This opinion can be formed on the basis of the information supplied to him if he finds that the information is given in sufficient detail and is reliable enough to justify his acting on its basis. Or else, the Learned Magistrate is expected to conduct preliminary enquiry. In this case, the information furnished by the Police itself do not provide any base material for the learned Learned Executive Magistrate to pass the impugned order. Under such circumstances, the proceedings are ordered to be quashed.

25. Under normal circumstances, at the stage of show cause notice, the Court do not interfere, but when that notice itself suffers from want of jurisdiction on account of lack of subjective satisfaction, then the 1st respondent cannot have the grievance that the Court has entertained the case of the petitioners. When the Executive Magistrate exercising jurisdiction under Section 111 Cr.P.C., itself is a Court, then it is inappropriate for the 1st respondent to comment that approaching this Court itself would amount to disrespect to the Executive Magistrate. Mistakes are to be corrected and not to be justified.

26.In the result, these writ petitions are allowed and impugned orders in both the cases are set aside. No costs. Consequently, connected Miscellaneous petitions are closed. Sd/ Assistant Registrar(C.S-I) /TRUE COPY/ Sub Assistant Registrar To:

1. The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District.

2. The Inspector of Police, Palukal Police Station, Kanyakumari District.

3. The Inspector of Police, Kaliyakkalvilai Police Station, Kanyakumari District.

+1cc to M/s.M.Suresh Kumar, Advocate, in SR No.66797. +1cc to M/s.Chamundi Bose, Advocate, in SR No.66523. +1cc to M/s.S.C.Herold Singh, Advocate, in SR No.66584. W.P(MD) Nos.13580 and 13585 of 2016 07.11.2016 rj2/ar msm/ss3/22.11.16/p10/7c