BABU AND JALAPPA NAIDU Vs. STATE

JUDGEMENT

(1.) This is a petition under section 482, Criminal Procedure Code, to quash the proceedings under Chapter VIII of the Code of Criminal Procedure, by the Executive Sub Divisional Magistrate, Tiruvallur. The case of the petitioner is that he was issued a show cause notice under section 111, Criminal Procedure Code, and that the notice does not contain the essential pieces of information, nor does it disclose that the Magistrate has applied his mind to the facts of the case. In this connection, learned Counsel for the petitioner brought to my attention a decision of this Court in Shanmugham v. State (Inspector of Police, Palladam), (1978) L.W. (Crl.) 138, where it was observed as follows:

(2.) The learned Public Prosecutor contended that the decision was passed in a proceeding under section 107, Criminal Procedure Code, and that the provision of law under section 109, Criminal Procedure Code, is not the same as the one under section 107, Criminal Procedure Code. It is true that under section 107, Criminal Procedure Code, the Magistrate should receive the required information and in addition should form an opinion that there is sufficient ground for proceeding. Under section 109, Criminal Procedure Code, upon the receipt of the information he may require the person to show cause by notice. It is the information which should disclose that a person is taking precaution to conceal his presence and it is for the informant to show that there is reason to believe that he is doing so with a view to commit a cognizable offence. Therefore, while acting under section 109, Criminal Procedure Code, it would be enough for the Magistrate that the report received contains the information in respect of the above two elements he does not have to form himself an opinion as under section 107, Criminal Procedure code.

(3.) Under section 111, Criminal Procedure Code, the Magistrate should supply the substance of the information received regarding the precaution to conceal the presence by a person. The two important details to be disclosed are the place and time where the person was found to be concealing his presence. The show cause notice issued under section 111, Criminal Procedure Code, is mute in respect of these two essential elements. Therefore, the petitioner is not in a position to complain or to give any satisfactory reply to the Magistrate. He is absolutely prejudiced in his defence. The order is found vitiated in that respect and is accordingly set aside.