Abbas and Haneefa v. State of Kerala and Sub Divisional Magistrate, Ottapalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938** ## **Crl.MC.No. 3723 of 2016 ()** ## **--------------------------MC.NO. 38/2016 & 39/2016 OF SUB DIVISIONAL MAGISTRATE COURT, OTTAPPALAM** **-----------------------** ## **PETITIONER(S)/ACCUSED :** **-------------------------------------------** ## **1. ABBAS,** **S/O. MUHGAMMADKUTTY, KANNAMPURATH VEEDU,THALAKKASSERY, PATTITHARA, THRITHALA, OTTAPALAM.** ## **2. HANEEFA,** **S/O. KOYA, VELITHARAKKAL HOUSE, THALAKKASERY, PATTITHARA, THRITHALA, OTTAPALAM.** ## **BY ADV. SMT.VANAJA MADHAVAN** ## **RESPONDENT(S)/COMPLAINANT :** **---------------------------------------------------** **1. STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, THRITHALA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN-682 031** **2. THE SUB DIVISIONAL MAGISTRATE, OTTAPALAM. PIN-678 010** ## **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 3723 of 2016 () -------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ---------------------------------------------** **ANNEX A1 PHOTOCOPY OF ORDER DT. 07.5.2016 OF SUB DIVISIONAL MAGISTRATE, OTTAPALAM. ANNEX A2 PHOTOCOPY OF THE ORDER DT. 07.5.2016 OF SUB DIVISIONAL MAGISTRATE, OTTAPALAM.** **RESPONDENT(S)' ANNEXURES: NIL ---------------------------------------------/TRUE COPY/ P.S.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.3723 of 2016 ----------------------------------------Dated this the 25[th] day of August, 2016** ## **O R D E R** - 1.The proceeding initiated by the Sub Divisional Magistrate, Ottapalam under Section 107 of the Code of Criminal Procedure against the petitioners herein is under challenge in this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity). - 2.As per the impugned order, the petitioners have been directed to appear before the said officer in person at 11.00 a.m. on 25.5.2016 and to show cause why they should not be required to enter into a bond of Rs.50,000/each with two sureties for the like sum for keeping peace for a term of one year. - 3.Heard the learned counsel appearing for the petitioners as 2 Cr.M.C.3723/2016 well as the learned Public Prosecutor. 4.The learned counsel would assail the order on various grounds. It is submitted that the substance of accusation has not been stated in Annexures I & II orders. Though it is stated in the order that the Station House Officer of the Thrithala Police Station has submitted the copy of FIR and other details of Crime Nos.52 of 2013 and 187 of 2016, no other details are mentioned in the order. The order is also silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioners are likely to disturb peace and tranquility in a particular locality and in order to prevent the same, it is necessary to take preventive action against them. It is urged that the materials before the learned Magistrate was thoroughly inadequate to arrive at the requisite satisfaction. Finally it is contended that the preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance was placed on the Full Cr.M.C.3723/2016 3 Bench decision of this Court in **Moidu v. State of Kerala** [1982 KHC 139 : 1982 KLT 578] and the decision of the learned Single Judges in **Peethambaran v. State of Kerala** [1980 KHC 239 :1980 KLT 876 : ILR 1980 (2) Ker. 589], **Santhosh M.V. and Others V State of Kerala** [2014 (2) KLD 519] and **Bejoy K.V. V State of Kerala** [2015 (2) KLD 889]. - 5.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Thrithala Police Station to the effect that the petitioners are likely to indulge in further criminal acts causing breach of peace and public tranquility in the area that preventive action was initiated. - 6.I have perused the materials on record as well. - 7.Under Section 107 of Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace, he may require such person to show cause why he should not be ordered to execute a bond with or Cr.M.C.3723/2016 4 without sureties, for keeping the peace for a period not exceeding one year. This has to be done in the manner provided in Section 111. That Section requires a Magistrate to make an order in writing, setting forth the substance of the information received. The _sine qua non_ for the institution of a proceeding under the Section is that the Magistrate shall be of the opinion that there is sufficient ground for proceeding. The Magistrate, has, under the law, to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility before taking action. For that purpose, the Magistrate before issuing notice under 111 must record the grounds, which, in his opinion as sufficient for proceeding further. ## 8.In **Madhu Limaye and Another v. SDM, Monghyr** [AIR 1971 SC 2486] the Apex Court, in para 36 of the judgment, had cautioned the Executive Magistrate exercising powers under Section 107 in the following Cr.M.C.3723/2016 5 ## manner:- _"We have seen the provisions of Sec. 107. That section says that action is to be taken in the manner here-in-after 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. It behoves us, therefore, to emphasize the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of general public."_ It was further observed 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 tranquility at his hands. Although the section speaks of_ Cr.M.C.3723/2016 6 _the ''substance' of the information, it does not mean the order should not be full. It may not repeat the information 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."_ 9.On perusing Annexures-I & II orders, it is evident that the Sub Divisional Magistrate has disregarded the statutory mandate and has invoked powers vested on him in a callous manner. The mere fact that the petitioners are involved in two crimes could not have been taken as the basis to issue a preventive order against the petitioners herein. (see **Santhosh M.V. and others v. State of Kerala** [2014 (3) KLT 837; Girish P and Others v. State of Kerala [2009 (4) KHC 929]). The reasons which led the Sub Divisional Magistrate to initiate proceeding is not disclosed in the order. In the absence of any evidence rendering a breach of peace probable, a Magistrate is not Cr.M.C.3723/2016 7 justified in calling upon parties, to show cause why he should not enter into recognisances, and on his failure , to make an order under the section. (see **Moidu v. State of Kerala** [1982 KLT 578]. It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. Annexures-I & II orders does not state in what way or with reference to what matter the petitioners were likely to commit a breach or peace. There was no tangible evidence before the learned Magistrate that some definite Act is contemplated, which Act, if committed, is likely to cause breach of peace. Annexures-I & II orders does not fulfill the requirement under Section 111 and reveals total non application of mind. 10.The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not punishment of crimes. It is not intended to punish persons for anything that they have done in the past, but to prevent Cr.M.C.3723/2016 8 them from doing in future something that might occasion a breach of the peace. The section is designed to enable the Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility. Wide powers have been conferred on the magistrates specified in this section and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law. - 11.I am unable to sustain Annexures I & II orders for the reasons detailed above. - The petition is allowed. M.C.Nos.38 of 2016 & 39 of 2016 of the Sub Divisional Magistrate Court, Ottapalam, are quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps