The two petitions though filed by different sets of petitioners, arise out of the proceedings in M.C. 18 of 1981 on the file of the Executive First Class Magistrate-cum-Revenue Divisional Officer, Usilampatti. The former petition has been filed by the members of the A party and the latter petition has been filed by Nos. 7 and 8 of the B party in the said proceedings. Each set of petitioners seeks quashing of the proceedings against them before the Executive First Class Magistrate.


2. On the basis of information laid before him by the Inspector of Police, T. Kallupatty, the Executive First class Magistrate passed an order under S. 112 Cri.P.C. (sic, for Section 111 Cri.P.C.) and called upon the members of the A party and B party to appear before him on 27-7-1981 at 10 a.m. and show cause why each one of them should not be directed to execute a bond for a sum of Rs. 1000/- with two sureties each in a like sum to keep the peace for a period of one year and also to execute an interim bond for a like sum with like sureties for the period till the case is finally disposed of. On receipt of the order, the members of the two parties have come forward with these two petitions under section 482 Cri.P.C. to seek the quashing of proceedings against them.


3. In the order passed under section 112 Cr.P.C. four instances are mentioned. Instances 1 and 3 relate to offences committed by three members (one named and two unnamed) of the A party against some members of the B party. Similarly, instances 2 and 4 relate to certain offences committed by some members of the B party against some members of the A party.


4. The petitioners in the first petition assail the validity of the preliminary order passed by the Executive First Class Magistrate on the following grounds-(1) Instances 1 and 3 refer to one named person of A party and two unnamed persons, but in spite of it, 26 members of the A party have been called upon to appear and show cause why they should not execute bonds for keeping the peace. There was no material fact for the learned Magistrate to call upon all the members of the party A instead of the two individuals alone named in instances 1 and 3 to show cause why they should not be bound aver. (2) The learned Magistrate has merely repeated the instances cited by the Inspector of Police and has passed the order without any discussion or consideration of the truth or otherwise of the materials placed before him. Therefore, the order suffers from non-application of mind by the Magistrate. (3) In the preliminary order, the members of the two opposing factions have been clubbed together and called upon to face a joint enquiry and this is opposed to sub-section 5 of Section 116 Crl.P.C. which permits a joint enquiry of only members or association of the same group. (4) The preliminary order ought to have been drawn up like+ a charge sheet containing all details with a list of witnesses to be examined and the nature of the evidence to be produced. But the impugned order does not disclose these materials and hence it is not in conformity with law. (5) The proceedings have been initiated in respect of cases pending investigation and therefore it follows that the Magistrate has acted prematurely on the information laid before him.


5. In the same manner, the two members of the B party have contended in their petition that as against them, the Inspector has not laid any information at all and hence they ought not to have been arrayed as members of the B party and called upon to appear before the Executive First Class Magistrate. The other contentions raised by the petitioners herein are similar to the grounds taken by the members of the A party in their petition.


6. Apart from these contentions, Mr. Arunachalam and Mr. Gopinathan the learned counsel for the respective petitioners in these two cases argued that the Magistrate has committed another illegality in calling upon the respective petitioners to execute interim bonds even before he had commenced the enquiry. In support of their contentions, the petitioners' counsel cited the following decisions : K. V. Shanmugham v. State, 1978 Mad LW (Cri) 130 wherein it was held that a notice issued under S. 111 has to satisfy a double test (i) that the notice must contain all the information laid against a person or persons, and (ii) before issuing the notice, the Magistrate should have satisfied that the situation called for the issuing of a show cause order. Thirumalaiappa Gounder In re, 1981 Mad LJ (Cri) 215, wherein the above ratio has been followed. Ramaswami Gounder v. S.I. of Police, Anamalai, 1980 Mad LW (Cri) 40, wherein it was held that the notice issued by the Magistrate under section 111 must clearly set out the information received by the Magistrate and the nature of the case the counter petitioners have to meet before entering their appearance. In support of the last submission, viz., that an order for execution of interim bond, should not be made before the enquiry has begun, Madhu Limaye v. Vedmurti, was cited. It was held in that case that under the scheme of court, a Magistrate can ask for the execution of an interim bond only after he had entered upon the enquiry and satisfied himself, at least prima facie, about the truth of the information in relation to the alleged facts.


7. Opposing these contentions, the learned Public Prosecutor cited Muthusami Chettiar v. Emperor, 1939 Mad WN (Cri) 177 : (1940- 41 CrLJ 238), wherein a Full Bench of this court held that a notice under section 112, Cri.P.C. need not set forth the particular breach of the peace or wrongful act in contemplation and all that the section required is that the substance of the informatian should be set forth and if this was done and the other requirements of the section were complied with, the notice must be held to be a valid one. The Public Prosecutor argued that the preliminary order passed by the Magistrate in this case satisfies all the requirements and that if he has committed any error in calling upon both the parties to face a joint enquiry, the Magistrate may be directed to split up the order and call upon the members of the two parties to appear before him separately.


8. In this case, it is not necessary to go into the validity of all the contentions raised by the petitioners in the two cases. Suffice it to say that two of the contentions are unassailable and hence, the petitions have to be allowed on these two grounds alone. The first is, that the learned Magistrate has passed a common order against the members of the two parties and called upon them to face a joint enquiry. This is clearly not in accordance with law. It has to be pointed out that under sub-section (5) of Section 116 Cri.P.C. a joint enquiry can be held only in respect of members or association of the same group; but not against the members of two rival groups. The second illegality is, that the Magistrate while passing the preliminary order, has called upon the counter petitioners to execute interim bonds each in a sum of Rs. 1, 000/- with two sureties each in like sum. The Supreme Court has clearly held in Madhu Limaye v. Ved Murti, that before an order for execution of interim bond is passed, the enquiry must have commenced and there must be prima facie material before the Magistrate to justify an order being passed for execution of interim bonds pending completion of enquiry. In this case, even before the enquiry has started, the Magistrate has passed the order for execution of interim bonds and this is patently against law. Hence, on these two grounds alone, the order deserves to be quashed.


9. The contention of the Public Prosecutor that the impugned order conforms to the requirements of law and that Sections 111 and 112 Cri.P.C. should be read in such a manner as to import more conditions than what are contained in these sections., as laid down in Muthusami Chettiar v. Emperor, 1939 Mad WN (Cri.) 177 : (1940- 41 CrLJ 238) cannot be accepted. The Full Bench decision does not say that an order passed under section 112 need not conform to the requirements of the section. What was held by the Full Bench in that case was that it is not necessary that while passing an ord

er under section 112 Cri.P.C. the Magistrate should also set out the specific nature of the breach of the peace or the wrongful act that was likely to be committed by the petitioners and in order to prevent which, an order under section 107 Cri.P.C. was considered necessary. Hence, the ratio laid down in that case cannot advance matters for the prosecution in any manner. 10. For the aforesaid reasons, it follows that both the petitions have to be. allowed and the proceedings quashed against the members of both parties, Though only two of the members of the B party have challenged the correctness of the order on their side, the benefit of this order has to go to all the members of the B party also on account of the inherent defects contained in the order of the learned Magistrate. Hence, the impugned order will stand quashed against the members of the A party as well as the B party.