Abdulkhader and others v Sub Divisional Magistrate, Kasaragod; Sub Inspector of Police, Kasaragod; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** ## **Crl.MC.No. 2426 of 2016 -----------------------** ## **MC 112/2016 OF SUB DIVISIONAL MAGISTRATE COURT, KASARGOD** ## **------------** ## **PETITIONER(S)/COUNTER PETITIONERS: ---------------------------------** ## **1. ABDULKHADER,** **AGED 50 YEARS,S/O. HUSSAIN, RESIDING AT ORAVANGARA, CHEMNAD, KASARAGOD DISTRICT.** **2. KABEER K.A** - **AGED 25 YEARS, S/O. AHAMED, RESIDING AT CHALIYAMKODE, CHEMMAD, KASARAGOD DISTRICT.** **3. MUHAMMED SAJI,** - **C.H.S,AGED 22 YEARS,** - **S/O. SHIHABUDDEEN, RESIDING AT CHEMBARIKA, CHEMNAD,KASARAGOD DISTRICT.** **4. RISWAN P.K,** - **AGED 28 YEARS, S/O. ABDUL RASAK, RESIDING AT MUBTHAK MANZIL ,DELY, KASARAGOD DISTRICT.** **5. ABDUL MANZOOR,** - **AGED 31 YEARS, S/O. MUHAMMEDKUNHI, RESIDING AT FATHIMA MANZIL, MAKKOD, KASARAGOD DISTRICT.** **6. MUHAMMED HASHIM A.M, AGED 24 YEARS, S/O. ABDULLA, RESIDING AT MAKKOD, KALANADU, KASARAGOD DISTRICT.** **BY ADVS.SRI.T.MADHU SMT.C.R.SARADAMANI** **RESPONDENT(S)/STATE:** **--------------------** **1. THE SUB DIVISIONAL MAGISTRATE, KASARGOD AT KANHANGAD, OFFICE OF THE SUB DIVISIONAL MAGISTRATE, KASARAGOD AT KANHANGAD,KANHANGAD P.O, KASARAGOD DISTRICT 676 121.** **......2/-** **PJ** **..2..** **Crl.MC.No. 2426 of 2016** **-----------------------** **2. THE SUB INSPECTOR OF POLICE,** - **KASARGOD POLICE STATION, KASARAGOD DISTRICT 676 101.** **3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## **BY PUBLIC PROSECUTOR SMT.PUSHAPALATHA M.K.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 2426 of 2016 ------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------** **A1 THE TRUE COPY OF THE ORDER DATED 30-03-2016 IN M.C NO 112/2016 ON THE FILE OF THE SUB DIVISIONAL MAGISTRATE'S COURT, KASARAGOD AT KANHANGAD** **RESPONDENT(S)' ANNEXURES -----------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **RAJA VIJAYARAGHAVAN.V, J** **---------------------------------------Crl.M.C. No.2426 of 2016 ----------------------------------------Dated this the 8[th] day of August, 2016** ## **O R D E R** - 1.The proceeding initiated by the Sub Divisional Magistrate, Kasaragod 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 13.4.2016 and to show cause why they should not be required to enter into a bond for Rs.25,000/- with two solvent sureties for the like amount for keeping peace for a term of one year. Crl.M.C.2426/2016 2 - 3.Heard the learned counsel appearing for the petitioners as 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 Annexure-A1 order. Though it is stated in the order that the Sub Inspector of Police, Kasaragod Police Station has reported that the petitioners are engaged in continuous acts of violence and Crime Nos. 371 of 2014 and Crime No.377 of 2014 of the Kasaragod Police Station has been registered against them, no other details are mentioned in the order. The aforesaid crimes are remote and could not have been the basis of initiation of proceedings, is the submission advanced. It is further urged that Annexure-A1 order is 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 Crl.M.C.2426/2016 3 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 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 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 Crl.M.C.2426/2016 4 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 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 Crl.M.C.2426/2016 5 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 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_ Crl.M.C.2426/2016 6 _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 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 Annexure-A1 order, 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 Crl.M.C.2426/2016 7 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; G **irish 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 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. Annexure-A1 order 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 Crl.M.C.2426/2016 8 Act is contemplated, which Act, if committed, is likely to cause breach of peace. Annexure-A1 order 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 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. I am unable to sustain Annexure-A1 order for the reasons Crl.M.C.2426/2016 9 detailed above. The petition is allowed. M.C.No.112 of 2016 of the Sub Divisional Magistrate Court, Kasaragod, will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps