Case Note & Summary
The petitioner, a resident of Pirna, Bardez, Goa and founder member of an organisation called 'Revolutionary Goans', challenged a show cause notice dated 27.01.2021 issued by the Deputy Collector and Sub-Divisional Magistrate, Pernem under Section 107 of the Code of Criminal Procedure, 1973. The organisation had been espousing issues concerning Goa and Goans, filing public interest litigations and organising meetings across Goa on socio-economic and environmental matters. The petitioner contended that the organisation faced false complaints against its members. The impugned notice required the petitioner to remain present in proceedings initiated under Section 107 CrPC on a report of the Pernem Police Station. The proceedings related to a meeting held on 23.01.2021, which was alleged to have been conducted without prior permission from the competent authority, with allegations that villagers were instigated to act against orders lawfully promulgated by public authorities and that hate speech was delivered. However, the petitioner pointed out that no order under Section 144 CrPC had been promulgated or was in force in North Goa at the relevant time. The petitioner filed Criminal Writ Petition No. 3 of 2021 before the High Court of Bombay at Goa, seeking quashing of the notice and the proceedings in Case No. MAG/107/CRPC/09/2021/290. At the request and by consent of the parties, the matter was taken up for final hearing at the admission stage. The petitioner's counsel argued that the notice was totally without jurisdiction and illegal, emphasizing that Section 107 CrPC mandates action in the manner provided in the Code and any deviation amounts to illegality and nullity. The counsel relied on Madhu Limaye v. Sub Divisional Magistrate and Jitendra Deshprabhu v. Executive Magistrate, among other judgments, to argue that the procedure under Section 107 cannot be departed from substantially, that summons must be issued in Form No. XIV under Section 113 CrPC, and that no interim bond can be taken unless inquiry under Section 116(3) has commenced. The learned Public Prosecutor fairly conceded the legal position. The court examined Section 107 CrPC and noted that it requires action to be taken 'in the manner hereinafter provided', which indicates that a Magistrate cannot depart from the procedure to any substantial extent because the liberty of the person is involved. The court found that the show cause notice dated 27.01.2021 was not in conformity with the provisions of law and did not mention the amount of bond or surety, which is required under Form No. XIV of Schedule II. The court held that the notice was not in conformity with Sections 107, 116 or Form No. XIV of Schedule II and was therefore illegal and liable to be quashed. Accordingly, the court allowed the petition, quashed and set aside the notice dated 27.01.2021 issued in Case No. MAG/107/CRPC/09/2021/290, and granted liberty to the authority to issue a fresh notice in consonance with the provisions of CrPC. All rights and contentions of both parties were kept open.
Headnote
A) Criminal Procedure - Preventive Proceedings under Section 107 CrPC - Procedural Mandate - Code of Criminal Procedure, 1973, Sections 107, 111, 113, 116 and Form No. XIV of Schedule II - The Executive Magistrate must act in the manner provided under the CrPC and cannot depart substantially from the prescribed procedure when curtailing personal liberty. The impugned notice was not in conformity with these provisions and was quashed. Held that action under Section 107 must strictly follow statutory procedure (Paras 5-9). B) Criminal Procedure - Validity of Show Cause Notice - Bond Amount and Surety - Code of Criminal Procedure, 1973, Sections 107, 116 and Form No. XIV of Schedule II - A notice under Section 107 must specify the amount of bond or surety as per Form No. XIV. The notice dated 27.01.2021 omitted this, rendering it illegal. Held that the notice was liable to be quashed and the Magistrate was at liberty to issue fresh notice in accordance with CrPC (Paras 9). C) Criminal Procedure - Personal Liberty and Procedure - Supreme Court Precedent - Code of Criminal Procedure, 1973, Section 107 - Section 107 CrPC involves the liberty of the person, and the law is solicitous that this liberty should only be curtailed according to its own procedure. The court emphasized the safeguards built into the procedure before curtailing liberty. Held that procedure cannot be departed from to any substantial extent (Paras 7). D) Criminal Procedure - Commencement of Inquiry and Interim Bond - Sections 113, 116(3) CrPC - No interim bond can be taken unless summons in Form XIV is served and inquiry under Section 116(3) has commenced. The court noted that no such inquiry had commenced in the present case. Held that the notice was illegal for non-compliance with these provisions (Paras 8).
Issue of Consideration
Whether the show cause notice dated 27.01.2021 issued in proceedings under Section 107 CrPC by the Deputy Collector and Sub-Divisional Magistrate, Pernem was valid and in conformity with Sections 107, 111, 113, 116 and Form No. XIV of Schedule II of CrPC, and whether the proceedings were liable to be quashed for procedural illegality.
Final Decision
The petition was allowed. The show cause notice dated 27.01.2021 issued by the Deputy Collector and Sub-Divisional Magistrate, Pernem in Case No. MAG/107/CRPC/09/2021/290 was quashed and set aside. The Authority was at liberty to issue fresh notice in consonance with the provisions of CrPC. All rights and contentions of both parties were kept open.
Law Points
- An Executive Magistrate acting under Section 107 CrPC must follow the procedure prescribed in the Code
- including issuance of show cause notice in conformity with Sections 107
- 111
- 113
- 116 and Form No. XIV of Schedule II
- any substantial departure from the prescribed procedure vitiates the proceedings
- notice under Section 107 must mention the amount of bond or surety
- no interim bond can be demanded before service of summons in Form XIV and commencement of inquiry under Section 116(3)
- liberty of the person cannot be curtailed except according to procedure established by law.
