JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a petition filed under S. 482 of the Code of criminal Procedure seeking to quash the preliminary order dated 30-12-1982 passed under S. 111 of the Code of Criminal Procedure, 1973 (for short the 'new code') by the Sub Divisional Magistrate. Ottapalam in M. C. No. 39 of 1982 against five persons including the present petitioners who figure therein as counter petitioners 3 to 5. It is argued by the learned counsel for the petitioners that as against petitioners I and 2 there are no material allegations made at all and the allegations against the third petitioner is wholly insufficient to initiate action under S. 107 of the Code. It is further argued that an order under S. 111 of the Code should be preceded by an order evidencing application of mind under S 107 of the Code and since such an order bad not been passed in this case, the order under S 111 of the Code is incompetent.

(2.) THE impugned order shows that all the five persons involved in the case are residents of the same locality in a village. THE substance of the information quoted in the impugned order refers to six complaints presented in the Mannarghat Police Station. THE first complaint was by the 4th counter petitioner in the M. C against the second counter petitioner and others. Petition was enquired into and the offenders were warned. THE second petition was by the 4th counter petitioner against the second counter petitioner and bis wife for assault. Enquiry showed that it was a family quarrel Third petition was by the 5th counter petitioner against counter petitioners 1 and 2 complaining wrongful restraint and assault with hands and sticks. THE case was registered, charge-sheeted and the case is now pending trial before the local Magistrate's Court. Fourth complaint was by strangers against the 5th counter petitioner complaining of attack with chopper. This also ended in charge-sheet and the case is now pending Fifth complaint was by a stranger against counter petitioners 1 and 2 and the case is under investigation. THE last complaint was by 3rd counter petitioner alleging assault and threat with dagger by the 5th counter petitioner. It may thus be seen that counter petitioners 3 and 4 were never involved as counter petitioners or as accused in any complaint or case. THE 5th counter petitioner was involved in one criminal case which is pending trial. On the basis of the observations of a Full Bench of this Court in Moidu v. State of Kerala (1982 klt. 578) it is argued by the learned counsel for the petitioner that the mere fact that the 5th counter petitioner figured as accused in a single criminal case by itself would not justify initiation of proceedings under S. 107 of the code and that the position with regard counter petitioners 3 and 4 is much worse in that they never figured as aggressors in any incident. THE question which arose before the Full Bench in the case referred to above was whether involvement in a criminal case was relevant consideration at all in a proceeding under S 107 of the Code. THE Full Bench made it clear that such involvement in a case would not be relevant and that what would be relevant is the consideration of the allegations regarding the participation in the criminal incident While the Full Bench observed that participation in such an incident would provide the basis for action under S. 107 of the Code, it was held that that by itself without anything more may not be sufficient. THE question is whether these observations would apply to the facts of the present case.

(3.) IT is necessary to understand the broad scheme of the provisions in Chapter VIII of the Code. Chapter VIII deals with security for keeping the peace and for good behaviour. S. 106 to 110 deal with various circumstances under which the Magistrate or court, as the case may be, can exercise powers under this Chapter. These sections are followed by S. 111 which deals with the order to be passed when the Magistrate acts under any of the S. 107 to 110 of the Code. If the persons involved are present in court, S. 112 requires the order to be read over to them. If the person is not present it is competent to the Magistrate to issue a summons requiring him to appear or where he is in custody, to issue a warrant directing the authorities concerned to bring him before the court by virtue of S. 113. S. 114 requires that every summons or warrant issued under S 113 shall be accompanied by a copy of the order made under S. 111, and such copy shall be delivered by the Officer serving or executing such summons or warrant to the person served with, or arrested under, the same. S. 116 requires the Magistrate to conduct an inquiry regarding the truth of the information on the basis of which he acted. The final order is to be passed in terms of S. 117 of the Code.