SHIVAPUTRAPPA GURSHANTAPPA ANGADI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) These two Criminal Petitions presumably Under Section 482 of the Criminal Procedure Code, arise out of a proceeding Under Section 107 of the Criminal Procedure Code, pending before the Court of the Executive Magistrate, Mundgod, District North Kanara.

(2.) The Police Sub-Inspector, Mundgod submitted a report before the Magistrate, on 2-3-1976 alleging that there was likelihood of breach of the peace at the instance of the petitioners and the opposite party involved who is one Sri B. F. Bendigeri, President of Mundgod Taluk Congress (R) Committee, it was stated that the petitioners are the President, General Secretary and members of the Taluk Congress (O) Committee of Mundgod. The report of the Police Sub-Inspector, indicated that the petitioners "colluded and decided to bring a party from Belgaum or Dharwar to murder Sri B. F. Bendigeri." This they intend doing because, B. F. Bendigeri was appointed as President of Taluk PLD Bank, Mundgod and some person of his choice was appointed as Chairman of LMPC Society, Mundgod. Being aggrieved by these elections, the police reported, that the said petitioners decided to bring some persons from Belgaum or Dharwar and intended to commit the murder. The learned Executive Magistrate without forming an opinion, that there was sufficient ground for proceeding Under Section 107 of the Criminal Procedure Code, referred to that report of the Police Sub-Inspector and prepared the preliminary order Under Sub-section (1) of Section 107 of the Criminal Procedure Code. The present two criminal petitions are filed with reference to that proceeding before the learned Executive Magistrate.

(3.) It is manifest Under Section 107 of the Criminal Procedure Code, the Executive Magistrate, who receives information, that any person is likely to commit a breach of the peace is further required to formulate his opinion that there is sufficient ground for proceeding against that person. Only thereafter, he can issue a notice to show cause why the said person should not be ordered to execute a bond, for keeping peace for such period. as may be prescribed by the Magistrate. If the Magistrate, receiving the information, does not formulate any opinion of his own (but nevertheless proceeds to make the preliminary order, decidedly, he commits the initial mistake, as the very foundation of the preliminary order would be lacking. In that contingency, the preliminary order itself will be held to be illegal and the entire proceeding is liable to be quashed.