Aji R v State of Kerala and Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 ``` ``` CRL.MC NO. 5492 OF 2024 CRIME NO.288/2022 OF EAST KALLADA POLICE STATION, KOLLAM ``` ``` MC NO.504 OF 2024 OF SUB DIVISIONAL MAGISTRATE,KOLLAM PETITIONER/ACCUSED: ``` ``` AJI R AGED 37 YEARS S/O.RAVI, RESIDING AT AJI BHAVAN,KANDRAAMKAANI MURI, MUNROTHURUTHU,KOLLAM, PIN - 691560 ``` ``` BY ADVS. RAMEEZ NOOH FATHIMA K. RONIT ZACHARIAH AMIN ALI ASHRAF BADIR SADIQUE ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2THE STATION HOUSE OFFICER KIZHAKKEKALLADA POLICE STATION, KOLLAM, PIN - 691001 ``` ``` BY SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO.5492 OF 2024 2 ``` ## **CR** ## **ORDER** Dated this the 15[th] day of July, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’ hereinafter), by the petitioner, who is the accused in Crime No.288/2022 of East Kallada Police Station, Kollam, now pending as M.C.No.504/2024 on the files of the Sub Divisional Magistrate Court, Kollam and the prayer herein is as under: _To call for the records pertaining Annexure A Order of the Sub Divisional Magistrate, Kollam in MC No.504/2024 issued under Section 111 r/w 107 of the Code of Criminal Procedure and quash the same as against the petitioner alone with all its consequential proceedings for the ends of justice._ 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused Annexure A order and relevant decisions placed by the learned counsel for the petitioner. ``` CRL.MC NO.5492 OF 2024 3 ``` 3. The learned counsel for the petitioner would submit that, going by Annexure A order issued by the Sub Divisional Magistrate, Kollam against the petitioner herein, there was direction to show cause why proceedings under Section 107 of the Cr.P.C. could not be taken against him so as to execute bond for Rs.1 Lakh, referring only one crime, viz., Crime No.288/2022 of East Kallada Police Station, Kollam, alleging commission of offences punishable under Sections 143, 147, 148, 452, 294(b), 354 and 427 r/w Section 149 of the Indian penal Code. It is submitted that the order does not speak about the necessity of invoking Section 107 of the Cr.P.C. It is submitted by the learned counsel for the petitioner that this Court considered this issue in its earlier decisions and the order impugned does not justify the essentials set out in the said decisions. 4. The learned counsel for the petitioner has placed decision of this Court in **Girish P. and Others** v. **State of Kerala and Another** reported in **[2009 (4) KHC 929]** . In the said case, this Court considered a case where the facts of the case as under: _The Sub Divisional Magistrate passed an order against the petitioners under Section 107 of the Code of_ ``` CRL.MC NO.5492 OF 2024 4 ``` _Criminal Procedure asking the petitioners to show cause why they shall not execute a bond for Rs.5000/- each with two sureties for the same for keeping peace for a term of one year. Petitioners challenge the order on the ground that the order is only an abuse of process of the Court and in spite of the mandate under Section 111 of the Code of Criminal Procedure, the substance of the information based on which proceedings was initiated, is not shown in the order. Court on an appreciation of the law held that unless the substance of the information is not stated in the order passed under Section 107, the order is bad in law._ ## Allowing the petition, this Court held as under: _Section 111 mandates that when a Magistrate acting under Section 107, deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any required, the necessity to set forth "the substance of the information" in the order under Section 111 is not an empty formality and is with a purpose. It is to enable the person against whom the order is passed, to appear and show cause before the Magistrate that the allegations are not correct. Unless that information is furnished to the person against whom the order is passed, he cannot defend the allegation as against him. Annexure_ ``` CRL.MC NO.5492 OF 2024 5 ``` _I order issued by the Sub Divisional Magistrate does not disclose the substance of the information received by the Sub Divisional Magistrate on which he was satisfied that proceedings under Section 107 is to be initiated. The fact that petitioners are involved in Crime 207/2009 by itself is not a ground, to initiate proceedings, under Section 107._ Another decision pointed out by the learned counsel in **Santhosh M.V. and Others** v. **State of Kerala and Others** reported in **[2014 (2) KLD 519]** , wherein this Court considered cases, where the facts of the cases as under: _Sub Divisional Magistrate, Thalassery received a report from the Station House Officer of the concerned Police Station apprehending involvement of certain persons in certain criminal activities and disturbing peace, and wanted the Magistrate to initiate proceedings under Section 107 CrPC. Therefore, SDM initiated separate proceedings against those persons under Section 107 CrPC and passed an order under Section 111 calling upon them to execute a bond under Section 109. In all those cases, SDM, without mentioning the substance of information and the reason for satisfaction, issued a stereotyped order requesting the counter-petitioners in those proceedings to execute a bond to keep peace and order in the locality for a particular period or to show-_ ``` CRL.MC NO.5492 OF 2024 6 ``` _cause as to why they should not be directed to execute bond. Counter-petitioners in the proceedings initiated by SDM, Thalassery under Section 107, CrPC filed petitions under Section 482 CrPC to quash the proceedings. All the 29 petitions were heard and disposed of together. Petitions were allowed._ ## Allowing the petitions, this Court held as under: _In all the above cases, proceedings were initiated by the Sub Divisional Magistrate on the basis of crimes registered by the Station House Officer stating a vague information that the petitioners are likely to indulge in criminal activities causing public disorder and affecting peace in the locality, issued the impugned orders. It is clear from the above order that there is nothing mentioned in the order regarding the reason for the authority to come to a conclusion that the activities of the counter petitioners in that proceedings gave a reasonable apprehension in the mind of the authority that they are likely to cause breach of peace and disrupt public tranquility at a particular time at a particular place which requires immediate intervention of the authorities to prevent such activities and for that purpose, they have to be called upon to enter on a bond to keep good behaviour for a particular period. In that case, the learned Sub Divisional Magistrate has only_ ``` CRL.MC NO.5492 OF 2024 7 ``` _extracted the wordings in the printed form and extracted the case numbers in which the counter petitioner was made an accused. He had not mentioned as to how far that is relevant for the purpose of considering the question as to whether the counter petitioners have to be called upon to enter on a bond to prevent public tranquility or breach of peace in the locality. As discussed above, the very purpose of initiating proceedings under Section 107 of the Code is to prevent public tranquility and breach of peace expected to be committed by the counter petitioners at a particular place at a particular time or period of time and it was intended to prevent that, that they are called upon to enter on a bond for good behaviour for a particular period, so that they can be prevented from participating in any act causing anticipated public tranquility or breach of peace in a particular place for a particular time. On a reading of the impugned order will go to show that there is nothing to infer from that order even to infer, the reason for the learned Sub Divisional Magistrate to come to such a conclusion that the counter petitioner must be asked to enter into a bond for the purpose mentioned under Sections 107 to 111 of the Code. The learned Magistrate has only reproduced the form without application of mind simply extracting the case numbers in which the counter petitioners were made accused. It is settled law_ ``` CRL.MC NO.5492 OF 2024 8 ``` _that merely because the counter petitioner was made an accused in a case alone is not sufficient to initiate proceedings against him under Section 107 of the Code. The purpose behind the initiation of proceedings is that there is an apprehension in the mind of the authorities that a particular person or set of persons is/are likely to involve in certain activities which is likely to create breach of peace and disrupt public tranquility in a particular place and presence of such persons in that place itself will be sufficient for that purpose and it is in the public interest that has to be prevented and for that purpose the proceedings will have to be initiated on the basis of the information received by the Sub Divisional Magistrate from the police or from other reliable sources and on that basis, he will have to satisfy the existence of such imminent necessity to initiate proceedings against that particular person and called upon to execute bond on good behaviour for a particular period so as to prevent that person causing any breach of peace or public tranquility in a particular place at that particular time. But a reading of the order of the Sub Divisional Magistrate will go to show that there is no application of mind by the learned Sub Divisional Magistrate in all these cases, but simply extracted the form quoted some crime numbers some of them were committed some two or three years ago and issued the order without passing any order as_ ``` CRL.MC NO.5492 OF 2024 9 ``` _contemplated under Section 111 of the Code so as to enable the counter petitioner to meet the grounds on which the proceedings have been initiated against him and as such, the procedure adopted by the Sub Divisional Magistrate, Thalassery in initiating proceedings against the petitioners is illegal and without application of mind and the same are liable to be quashed as it is not passed in terms of the provisions provided under Sections 107 to 111 of the Code. So, the petitioners are entitled to the relief claimed in these petitions._ Similarly, in the decision in **Bejoy K.V.** v. **State of Kerala and Another** reported in **[2015 (5) KHC 507]** this Court considered a case where the facts of the case as under: _Case of the petitioner is that based on the recommendation of the Sub Inspector of Police to initiate action against the petitioner under Section 107 CrPC, the Sub Divisional Magistrate issued an order asking the petitioner to show cause why the petitioner should not be required to furnish a bond for Rs.25,000/- and also furnish security by executing a bond with two solvent sureties each for the like sum, for keeping peace for a period of one year. The petitioner was asked to be present on a particular day. According to the petitioner,_ ``` CRL.MC NO.5492 OF 2024 10 ``` _the Sub Divisional Magistrate should have stated clearly about the circumstances in the order passed by him under Section 111 CrPC, calling upon the petitioner against whom information has been received, to show cause against the execution of bond as envisaged by the provision. Hence, according to the petitioner, there is non-application of mind in the said order. Thus, petitioner has approached the High Court._ Allowing the petition, this Court held as under: _An order issued under Section 111 CrPC calling upon the person to show cause against execution of bond without disclosing therein the substance of information received and upon which satisfaction was arrived at by him, will not sustain in the eye of law. The order must contain all particulars relevant and sufficient to inform him about the accusation against him. This is because, the party calling upon must have to explain the circumstances against him or defend the proceedings and only on sufficient and satisfactory information being furnished, he will be able to answer the same. Therefore, the Sub Divisional Magistrate empowered with the authority to exercise the authority under Section 107 CrPC to initiate proceedings must be vigilant and conscious while exercising the power and should bear in mind that the spirit envisaged by the Section is preservation of peace and public tranquillity._ ``` CRL.MC NO.5492 OF 2024 11 ``` 5. Highlighting the legal position, the learned counsel for the petitioner submitted that, since the order does not depict the reasons and also the order was issued highlighting involvement of the petitioner only in one crime, the order is illegal and the same would require interference. 6. In reply to this argument, the learned Public Prosecutor would submit that, the petitioner has involvement in 7 cases altogether and 6 other cases prior to Crime No.288/2022 also pointed out as under: - _Sl. Crime No. Sections PS_ - _No. 1 170/2010 323, 341 r/w 34 IPC East kallada 2 441/2010 452,294(b),324,308, 354, East kallada r/w 34 IPC_ - _3 561/2012 427, 435, 447, 489, 506(ii) East kallada & 34 IPC_ - _4 1014/2014 341, 294(b), 323, 324, 427 East kallada & 34 IPC_ - _5 107/2016 341, 294(b), 323, 308 IPC East kallada & 27 of Arms Act_ - _6 629/2019 294(b), 324, 447, 506(i) East kallada IPC_ ## **`CRL.MC NO.5492 OF 2024 12`** Accordingly, the learned Public Prosecutor would submit that, Annexure A order is fully justified and if the petitioner has any grievance, he could very well appear before the Sub Divisional Magistrate and submit the same while considering final order. 7. In a latest decision of this Court in **Ismail Sahib** v. **State of Kerala** reported in **[2023 (6) KHC 103]** , this Court dealt with a case of similar nature and held in paragraph Nos.8 and 9 as under: _8. On perusal of Annexure – 1 order, it has been stated that the attendance of the petitioner is necessary to answer a charge under S.107 of CrPC and thereby he was directed to appear in person on 26.11.2021. In this context, it is discernible that the order impugned doesn't contain the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required. Therefore, the non-compliance of S.111 of CrPC is vivid and the order which doesn't contain the above details cannot sustain in the eye of law._ _9. Thus, it is the mandate that whenever a Magistrate intents to proceed acting under S.107, S.108, S.109, or S.110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance_ ``` CRL.MC NO.5492 OF 2024 13 ``` _of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required and without furnishing such details, the order will be non-est. Therefore, the order is liable to be set aside. Accordingly, Annexure-1 order stands quashed and this petition stands allowed._ 8. Indubitably, the law is well settled that an order issued under Section 107 of the Cr.P.C., showing show cause, whenever a Magistrate intents to proceed acting under S.107, S.108, S.109, or S.110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required and without furnishing such details, the order will be non-est. 9. On scrutiny of the impugned order, the same would not depict the details of all the crimes which the petitioner got involved and the other essentials as set forth hereinabove. For the said reason, the order is liable to be set aside and accordingly, Annexure A order ``` CRL.MC NO.5492 OF 2024 14 ``` stands set aside and the matter remitted back to the Sub Divisional Magistrate Court, Kollam to pass fresh order, taking note of the legal positions as hereinabove, within a period of 30 days from the date of receipt of a copy of this order. Accordingly, this petition stands disposed of. Registry is directed to forward a copy of this order to the Sub Divisional Magistrate Court, Kollam, for information and compliance. **==> picture [354 x 34] intentionally omitted <==** Sd/- **A. BADHARUDEEN JUDGE** Bb ``` CRL.MC NO.5492 OF 2024 15 ``` ## **`APPENDIX OF CRL.MC 5492/2024`** ``` PETITIONER’S ANNEXURES ``` ``` ANNEXURE ATRUE COPY OF THE ORDER DTD.NIL ISSUED BY THE HON'BLE SUB DIVISIONAL MAGISTRATE, KOLLAM IN MC.NO.504/2024 UNDER SECTION 111 R/W 107 OF THE CODE OF CRIMINAL PROCEDURE CODE. ``` ``` RESPONDENTS' ANNEXURES : NIL ```