Case Note & Summary
The criminal writ petition was filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging a show cause notice dated 26th April 2005 issued by the Special Executive Magistrate, Mulund Division, under Section 111 of the CrPC, and the subsequent order dated 14th June 2005 under Section 107 of the CrPC directing the petitioner to execute a bond for good behaviour. The background involved a dispute over a cable network business, where the petitioner had allegedly threatened a witness and was accused of offences under Sections 323 and 504 of the Indian Penal Code. The show cause notice called upon the petitioner to show cause why he should not furnish a bond for one year with a surety of Rs.5000/-. The petitioner appeared before the authorities on 10th May 2005 and 14th June 2005. On the latter date, the Special Executive Magistrate allegedly forced the petitioner to execute a bond without granting an opportunity of hearing, and passed a cyclostyled order that recorded that the petitioner had accepted the allegations and tendered an apology, which the petitioner denied. The petition was amended to challenge this order. On 6th September 2005, the High Court passed an order noting the Division Bench decision in Surendra Ramchandra Taori v. State of Maharashtra (2001 ALL M.R. Cri. 2079), which had observed that vesting powers of Special Executive Magistrates in police officers had resulted in blatant misuse of such powers to the detriment of citizens' fundamental rights under Article 21, and had recommended that the State consider vesting such powers in Judicial Magistrates under Section 478 of the CrPC. The State expressed its inability to accept the recommendation through an affidavit filed in another writ petition. The main legal issue was whether the show cause notice and the order complied with the mandatory procedural requirements under Sections 107 and 111 to 116 of the CrPC. The petitioner argued that the procedure was not followed, no inquiry was conducted, the order was cyclostyled and showed non-application of mind, and the bond was forced. The State defended by relying on circulars issued for the guidance of Special Executive Magistrates and explaining the reasons for not accepting the Division Bench's recommendation. The Court considered the submissions and examined the provisions of Sections 107, 111, 112, 113, 114, 115, and 116 of the CrPC, emphasising that the Magistrate must follow the prescribed steps before directing execution of a bond. The judgment highlighted the procedural lapses and the non-application of mind evident from the cyclostyled order.
Headnote
A) Criminal Procedure - Preventive Measures - Security for Keeping Peace - Code of Criminal Procedure, 1973, Sections 107, 111 - Show cause notice under section 111 is required to set forth substance of information, amount, term, and sureties; Section 107 requires receipt of information and formation of opinion - The notice in question was vague and did not comply with these requirements; the order dated 14-06-2005 was a cyclostyled order indicating non-application of mind (Paras 2-3, 6). B) Criminal Procedure - Inquiry Procedure - Scope of Sections 112-116 - Code of Criminal Procedure, 1973, Sections 112, 113, 114, 115, 116 - Mandatory procedure for reading order to person present, issuing summons, furnishing copy, and conducting inquiry into truth of information - The Special Executive Magistrate failed to conduct an inquiry and forced the petitioner to execute bond without following the prescribed procedure (Paras 3, 6). C) Constitutional Law - Judicial Review - Article 227, Constitution of India, Section 482 CrPC - High Court's power of superintendence and inherent power to prevent abuse of process - The Division Bench in Surendra’s case observed that vesting powers of Special Executive Magistrates in police officers leads to blatant misuse to the detriment of fundamental rights under Article 21; High Court can quash proceedings that violate procedural law (Paras 5-6).
Issue of Consideration
Whether the show cause notice dated 26-04-2005 under section 111 of the Code of Criminal Procedure, 1973 and the subsequent order dated 14-06-2005 under section 107 of the said Code passed by the Special Executive Magistrate were legal and in compliance with the procedure prescribed under the Code.
Law Points
- Procedure under sections 111-116 CrPC mandatory
- Show cause notice must set forth substance of information
- Inquiry into truth of information required
- Cyclostyled order shows non-application of mind
- Executive Magistrate must apply mind
- Prevention of abuse of process
