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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 589 OF 2021

1. Annasaheb Baburao Teke

Age : 70 years, Occu. Agri.,

2. Amol Annasaheb Teke

Age : 40 years, Occu : Advocacy,

3. Vishal Annasaheb Teke

Age : 36 years, Occu : Agri.,

All R/o. Wari, Tq. Kopargaon,

Dist. Ahmednagar

... Petitioners

(Orig. Accused)

VERSUS

1. The State of Maharashtra

2. The Tahashildar and Executive Magistrate,

Kopargaon, Tq. Kopargaon,

Dist. Ahmednagar

3. Uddhav Baburao Teke

Age : 50 years, Occu : Agri.,

R/o. Wari, Tq. Kopargaon,

Dist. Ahmednagar

... Respondents

(Resp.No.3 Orig. Applicant)

Mr N.V. Gaware, Advocate for petitioners;

Mr R.V. Dasalkar, A.P.P. for respondent nos.1 & 2

CORAM : DIPANKAR DATTA, CJ

AND

RAVINDRA V. GHUGE, J.

DATE : JUNE 19, 2021

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ORAL ORDER (PER - DIPANKAR DATTA, CJ.)

1.

The challenge in this criminal writ petition under Articles

226 and 227 of the Constitution of India read with section 482

of the Code of Criminal Procedure, 1973 (hereafter ‘the Cr.P.C.’,

for short) is to the legality and validity of a notice dated 9^th

March, 2021 issued by the Executive Magistrate, Kopargaon,

respondent no.2, under section 107 of the Cr.P.C. in connection

with Chapter VIII Case No. 288 of 2021. The only ground on

which the petitioners have prayed for quashing and/or setting

aside the impugned notice dated 9^th March, 2021 is that, no

separate order has been recorded by the respondent no. 2 as is

statutorily ordained by section 111 of the Cr.P.C.

2.

Mr. Gaware, learned advocate representing the petitioners

while referring to the impugned notice and questioning it on

the ground noticed above, submits that an order under section

111 of the Cr.P.C is a pre-condition for issuance of a notice

under section 107 thereof; and absence of such an order in the

file renders the proceedings initiated by the respondent no. 2

vitiated.

3.

It is also submitted by Mr. Gaware that the issue raised in

this writ petition is no longer res-integra. Relying on the

decision of a Full Bench of this Court reported in 2019 (5)

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Mh.L.J. 884 (Farhan Nasir Khan Vs. State of Maharashtra

and another), he submits that since the notice dated 9^th

March, 2021 issued by the respondent no. 2 was not

accompanied by the order passed under section 111 thereof,

such an action is in the teeth of the opinion rendered by the

Full Bench in Farhan Nasir Khan (supra) and, therefore, the

petitioners are entitled to the relief as claimed in the petition.

4.

The petition has been opposed by Mr. Dasalkar, learned

AGP for the State, respondent no. 1, as well as the respondent

no. 2. According to him, the respondent no. 2 has issued an

order complying with the requirements of section 111 of the

Cr.P.C. and such order by itself calls upon the petitioners to

show-cause by 17^th March, 2021 why they should not be

directed to furnish P.R. bond of Rs.25,000/- valid for the next

six months with equal amount of surety, as a preventive

measure, having regard to the opinion formed by the

respondent no. 2 that the petitioners by their alleged acts as

recorded in the first part of the order have created a situation

which, in the opinion of the respondent no. 2, is likely to

endanger public tranquility and public peace, thereby causing

a serious ofence. According to Mr. Dasalkar, since the

petitioners were asked to show cause and it was served upon

the petitioners, no exception can be taken to such action of the

respondent no. 2. In support of his submission that though the

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provision contained in section 111 of the C