The Magistrate must have sufficient grounds and imminent likelihood of a breach of the peace to proceed under S.107, and must follow the procedural requirements for passing orders under S.112 and S.117(3) of the Code.

K. Sadasivan, J.

1. The counter petitioners in M. C. 13/69 on the file of the Executive First Class Magistrate, Tellicherry are the revision petitioners. Proceedings under S.107 of the Code of Criminal Procedure were taken against them by the learned Magistrate on the report of the Circle Inspector of Police. Tellicherry that they are likely to create a breach of peace and disturb public tranquility within the jurisdiction of the Tellicherry police. The learned Magistrate acting under S.107 has passed a composite order purporting to be falling both under S.112 and 117(3) of the Code. Two points were raised before me against the validity of the order and they are:-

(i) The grounds stated for the initiation of the proceedings are irrelevant and in any event insufficient for passing an order either under S.112 or 117(3) of the Code; and

(ii) The order is illegal, in that it is in violation of the mandatory provisions of the Code. I think there is considerable force in the contention of the learned 'counsel.

2. Point No. 1: The 'sine qua non' for the institution of a proceeding under S.107 is that the Magistrate shall be of opinion that there is sufficient ground for proceeding. It must appear to the Magistrate that a likelihood of a breach of the peace is imminent. Security in anticipation of a breach of peace cannot be justified. So also mere enmity between two factions is insufficient to sustain an order under S.112. It is not sufficient that bad feelings exist between two sets of people, for starting proceedings under S.107. In the present case grounds are stated in support of the order and they are:

(i) On 1469 at about 2330 hrs. counter petitioners 1 to 6 along with other persons numbering about 25, formed themselves into an unlawful assembly carrying deadly weapons near the Jaganath Temple gate at Tellicherry, beat with sticks and stabbed with knife etc.;

(ii) On 24469 at about 1700 hrs. at Mallor road, near Mukunda Talkies in Tellicherry amsom counter petitioners 1 to 3 along with others formed themselves into an unlawful assembly armed with deadly weapons and assaulted Kottammal Balakrishnan, Kannachankandy Kadur Jaya Rajan and other Marxist group of the Communist Party and caused injuries; and

(iii) Counter petitioners 7 and 8 who are active members of R.S.S. have been organising training for volunteers with long sticks in the premises of Daivatharamadom, Tiruvangad. There is also information that the counter petitioners and others are likely to indulge in acts of violence with a view to retaliate against the Marxists for the offences committed by them on 24469.

3. In respect of the first two instances, cases under the Indian Penal Code have been registered; incident under the first head is covered by crime No. 60/69 and that under the second head by crime No. 75/69, both under S.147, 148, 149, 323, 324 and 341 IPC. It has clearly been laid down in decisions of the various High Courts that allegations of offences under the Indian Penal Code in respect of which cases have already been registered cannot be made the subject matter of security proceedings under S.107, since such grounds are irrelevant. In a recent case in Sushanta Goswami v State of West Bengal (1969 MLJ Crl. p. 665) The Supreme Court has observed that:-

"Where grounds of detention are mere allegations of offences under the Indian Penal Code and where the grounds of detention relate to matters for which penal or other action could be taken under the relevant statutes, detention for the maintenance of public order is not justified. Grounds which are so irrelevant that it is incomprehensible cannot be justified."

That was a case under the Preventive Detention Act; but the position is analogous. There also the detention was resorted to for maintenance of public peace and order.

The learned Judge further observed in that case:-

"if some of the grounds which are given are irrelevant, the order of detention under S.3(2) of the Preventive Detention Act, 1950 cannot be u