A likelihood of a breach of peace among the public, due to the conduct of the Accused
Security for keeping the peace in other cases (S-107)
(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.
111. Order to be made.- When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.
Notice and Show Cause
Notice: a notice under Section 111 of the Code, the Magistrate is obliged to a judicial performance as the said act is judicial work and therefore, he has to apply judicial mind and such order should not be issued, as if they are an outcome of mechanical process.
Now, we will go to the Full Bench decision of the Bombay High Court in the case of Farhan Nasir Khan Vs. State of Maharashtra and others reported in 2020 (206) AIC 279.
49.The questions that has been referred to before the Hon’ble Full Bench are that i) whether before issuing the show cause notice under Section 111 of Cr.P.C., separate order must be passed by the Magistrate?
ii) Whether the aforesaid order must accompany the show cause notice issued under Section 111 of Cr.P.C.
iii) If the show cause notice, which is in writing and which sets forth (i) the substance of the information received, (ii) amount of the bond, (iii) term for which it is to be in force, (iv) number character and class sureties, if any, is required and (v) grounds for apprehending breach of peace or disturbance of public tranquility, whether a separate order must be passed.
The Hon’ble Full Bench after going through the entire law came to the conclusion that the Magistrate has to form an opinion in writing as contemplated by Section 111 of Cr.P.C. and thereafter, proceed to issue the show cause notice as contemplated by Section 107 of and along with the show cause notice, the opinion must be annexed. It can also be done in the notice itself by integrating all the aforesaid facts.
Further explaining purpose of the notice, it is observed that the noticee must know the factual matrix comprising either in the complaint or in the information received and the reasons for the opinion of the Magistrate. So, according to the Hon’ble Full Bench decision, the purpose of the notice is to inform the noticee with regard to all relevant facts as stated above for the purpose of giving him a fair and full opportunity to put forth his explanation. So, this judgment of the Hon’ble Full Bench of Bombay High Court further guides to address the issue.
Madhu Limaye Vs. S.D.M.Monghyr (AIR 1971 SC 2486)-In Para 37 as under:- Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands. Although the section speaks of the ‘substance of the information’ it does not mean the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word ‘substance’ means the essence of the most important parts of the information.”
“The gist of the Chapter is the prevention of crimes and disturbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered. The action being preventive is not based on overt act but on the potential danger to be averted. These provisions are thus essentially conceived in the interest of public order in the sense defined by us. They are also in the interest of the general public. If prevention of crimes, and breaches of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life, there can be no doubt that they are in the interest of public order.”
In Madhu Limaye vs. Sub-divisional Magistrate, Monghyr & Ors., (1970) 3 SCC 746, Hon’ble Supreme Court of India considered scope of Section 107 of the Cr.PC, as under:
“33. The section is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity. This is an instance of preventive justice which the Courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order…..
35. We have seen the provisions of Section 107. That section says that action is to be taken ‘in the manner hereinafter provided’ and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned…..”
In Sana Nadim Pawaskar & Anr. vs. State of Maharashtra, 2003 SCC OnLine Bombay 168, Hon’ble High Court of Bombay had the occasion to consider an identical issue, as under:
“3. Whenever, a Magistrate decides to issue a notice in view of provisions of Section 111 of the Code, he has to given sufficient idea to the petitioner for knowing the exact nature of apprehension, which is lingering in the mind of the Magistrate in respect of the possibility of breach of public peace. Those instances should be, serious enough to really cause a threat to the public tranquillity.
In Christalin Costa (Smt.) & Ors. vs. State of Goa & Ors., 1992 SCC OnLine Bom 252; Hon’ble Bombay High Court was dealing with a matter pertaining to initiation of proceedings under Section 107 of the Cr.PC against the neighbours. Their relations were quite strained and there were constant quarrels on account of which police complaints and counter complaints were lodged by both the parties. While the proceedings under Section 107 of the Cr.PC were pending, another complaint was lodged leading to initiation of fresh proceedings under Section 107 of the Cr.PC.
In the said case, Hon’ble High Court of Bombay held as under:
“7…..Obviously when there are quarrels between two private individuals it appears that this situation is not contemplated by these legal provisions. Quarrels between individuals are not normally creating any problem of public order and at the most it may lead to a problem of law and order to be dealt with by the appropriate penal law. Proceedings under Section 107 are always dealing with preventive measures to be taken by the Magistrates in order to pre-empt any possibility of breach of peace and disturbance of public tranquillity. In the case of Jayant D. Shah v. State of Maharashtra, (1986) 1 Crimes 405, this Court has held that the provisions of Sections 107 to 110 cannot be used or exercised for satisfying private vendetta of a querulous person and the exercise of powers by the Magistrate under the aforesaid sections on the basis of incidents involving trivial quarrels without application of mind would amount to gross abuse of the process of law.”
In Perswami Kandswami Devendra & Anr. vs. Sr. Inspector of Police, Mumbai & Ors., 2003 SCC OnLine Bom 251, the petitioners were father and son. They challenged show cause notice issued by SEM, Matunga, Mumbai under Section 111 of the Cr.PC for taking action under Section 107 of the Cr.PC. Hon’ble High Court of Bombay held as under:
“6. Domestic quarrels, petty quarrels between neighbouring persons which do not have long life are not the subject matters of the actions to be taken in view of Section 107 of the Code. The energy and time of public servant concerned should not be wasted in such trifling matters or for satisfying the personal vendetta or for the purpose of giving lessons to each other.”
The issue concerning implementation of Section 107 and 151 of the Cr.PC. was the subject matter of the judgement delivered by Hon’ble Division Bench of Hon’ble High Court of Delhi in Aldanish Rein vs. State of NCT of Delhi & Anr., WP (Criminal) 2039/2018 decided on 09.10.2018 reported as 2018 SCC OnLine Del 12207. In the said judgement, Hon’ble High Court of Delhi, in para No. 71, issued directions to ensure that preventive powers under Section 107 or 151 of the Cr.PC are not abused or misused by SEMs. Hon’ble High Court of Delhi emphasized need of periodical training of SEMs.
In Gopalanachari Vs. State of Kerala (AIR 1981 SC 674) has observed the ill-effect of Section 110 Cr.P.C. Paragraph No.5 of the said judgment is extracted hereunder:-
“A closer look at Section 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case. Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under Section 110 were prevented from pervasive misuse by zealous judicial vigilance and interpretative strictness, many a poor man, maybe cast into prison by sticking the label of ‘habitual’ or by using such frightening expressions as ‘desperate’, ‘dangerous’ and ‘hazardous to the community’. Law is what the law does, even as freedom is what freedom does. Going by that test, Section 110 cannot be permitted in our free Republic to pick up the homeless and the have-nots as it did when under British subjection because to-day to be poor is not a crime in this country. George Bernard Shaw, though ignorant of 110, did sardonically comment that “the greatest of evils and the worst of crimes is poverty”.
After analyzing the provisions in the light of Article 21 of the Constitution of India, the Hon’ble Supreme Court in the concluding paragraph has observed as under:-
“Let us allay misunderstandings. We are clear in our mind that prevention is better than cure, in criminal law as in medicines, especially when there is judicial supervision. Society cannot be left at the mercy of predators and bandits who, like wild beasts, prey upon the weak and the innocent and become a menace to peace and security of society. But liberty is a prized value and that is why we have insisted not merely upon the Police having to be careful before marching poor people into court under Section 110 but the Court itself having to be gravely concerned about using preventive provisions against helpless persons, not on formal testimony readily produced to order as we have noticed in a recent case, [Prem Chand Vs. Union of India, Writ Petition No.3050 of 1980 decided on 11.11.1980, MANU/SC/0191/1980:1981 CriL J5 (SC)] but on convincing testimony of clear and present danger to society.”
The Hon’ble Supreme Court in the case of Ram Narain Singh and others Vs. State of Bihar reported in AIR 1972 SC 2225, in paragraph No.6, has observed like this.
“6………….We may at the outset state that we find it difficult to accede to the submission made by Mr. Singh that once the period for which bond was ordered to be executed has expired, the order becomes nugatory and the proceedings under section 107 of the Code of Criminal Procedure must be dropped. The proceedings under section 107 of the Code, in our opinion, can continue despite the fact that the period for which the bond was required to be executed has expired. To hold otherwise would lead to the result that the proceedings under the section would have, to be dropped if the person proceeded against succeeds in protecting the proceedings, even though the apprehension of breach of peace or disturbance of public tranquillity still persists. At, the same time, the court is not precluded from taking into account,, the subsequent events. If the material on record discloses that though there was a danger of breach of peace it one time, because, of the happening of a subsequent event the danger of breach of peace has disappeared, the court can drop the proceedings and discharge the person proceeded against. Even in the absence of some positive evidence of reconciliation between the opposing parties, if the court finds that since, the date of incident complained of, a very long period has elapsed during the course of which nothing untoward has happened. the court may well draw the inference that the danger of breach of peace has vanished. ”