Alwin Edger v. State of Kerala and The Sub Divisional Magistrate, Kollam, Crl.M.C. Nos. 2728, 2729 & 2730 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938** ## **Crl.MC.No. 2728 of 2016 ()** **--------------------------MC. NO.808/2016 OF SUB DIVISIONAL MAGISTRATE COURT, KOLLAM. CRIME NO. 561/2016 OF EZHUKONE POLICE STATION , KOLLAM DISTRICT. .....** ## **PETITIONER/ACCUSED :** **------------------------------------** **ALWIN EDGER, S/O. SUSHEELA EDGER, AGED 19 YEARS, 2ND YEAR IV- SEMESTER MECHANICAL ENGINEERING, TKM INSTITUTE OF TECHNOLOGY, MUSALIAR HILLS, KARUVELIL P.O., EZHUKONE, KOLLAM, RESIDING AT SANTA-ALLEANZA BISHOP PALACE NAGAR-67A, THANGASSERY, KOLLAM-691 007.** ## **BY ADV. SRI.B.MOHANLAL.** |**RESPONDENTS/COMPLAINANT :**|**RESPONDENTS/COMPLAINANT :**| |---|---| |**--------------------------------------------------**|| |**1.**|**STATE,**| ||**REPRESENTED BY THE STATION HOUSE OFFICER,**| ||**EZHUKONE POLICE STATION, EZHUKONE P.O., KOLLAM,**| ||**THROUGH THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2.**|**THE SUB DIVISIONAL MAGISTRATE,**| ||**COLLECTORATE, CUTCHERY P.O.,**| ||**KOLLAM-691 013.**| ||**BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K.**| ||**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD**| ||**ON 10-08-2016, ALONG WITH CRL.MC. NO.2729 OF 2016 AND**| ||**CRL.MC. NO.2730 OF 2016, THE COURT ON THE SAME DAY**| ||**PASSED THE FOLLOWING:**| rs. ## **Crl.MC.No. 2728 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** |**ANNEXURE A1**|**COPY OF THE ORDER IN MC NO.808/2016 DTD. 19.04.2016**| |---|---| ||**ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.**| |**ANNEXURE A2**|**COPY OF THE FIR IN CRIME NO.127/2016 OF**| ||**EZHUKONE POLICE STATION, KOLLAM DISTRICT.**| |**ANNEXURE A3**|**COPY OF THE ORDER DTD. 08.04.2016 IN**| ||**WPC NO.12307/2016 OF THIS HON'BLE COURT.**| **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE** rs. **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. Nos.2728, 2729 & 2730 of 2016 ----------------------------------------Dated this the 10[th] day of August, 2016** ## **O R D E R** - 1.The petitioners in all these cases challenge the proceedings initiated by the Sub Divisional Magistrate, Kollam under section 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity). - 2.All these petitioners have been directed to appear before the Sub Divisional Magistrate at 11.00 a.m. on 4.5.2016 and to show cause why they should not be required to enter into a bond of Rs.20,000/- each with two solvent sureties for the like sum for keeping peace for a term of one year. - 3.Interestingly, in all these cases separate orders have been issued stating that a case has been registered against the petitioners at Ezhukone Police Station and that the officer Crl.M.C.2728/2016 & Conn.Cases 2 was fully satisfied from the report of the Sub Inspector of Police, Ezhukone Police Station that the situation is likely to result in breach of peace. Since identical questions are raised, all these petitions are taken up and disposed of together. - 4.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. - 5.The learned counsel appearing for the petitioners would assail the order on various grounds. It is submitted that the substance of accusation has not been stated in Annexure-A1 order. The order reveals total non application of mind as the solitary crime made mention of in Annexure-A1 is the one registered by the police under Section 107 of the Code. It is urged that the materials before the learned Magistrate was thoroughly inadequate to arrive at the requisite satisfaction. There was no indication of the likelihood of any breach of peace or disturbance of public tranquility in the near future. Finally Crl.M.C.2728/2016 & Conn.Cases 3 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]. - 6.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Ezhukone to the effect that the petitioners were continuously involving themselves in criminal offences causing breach of peace and public tranquility in the area that preventive action was initiated. - 7.I have perused the materials on record as well. - 8.Under Section 107 of Code, whenever a Magistrate is informed that any person is likely to commit a breach of Crl.M.C.2728/2016 & Conn.Cases 4 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 the grounds, which, in his opinion as sufficient for proceeding further. ## 9.In **Madhu Limaye and another v. SDM, Monghyr** [AIR 1971 SC 2486] the Apex Court, in para 36 of the Crl.M.C.2728/2016 & Conn.Cases 5 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 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_ Crl.M.C.2728/2016 & Conn.Cases 6 _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."_ 10.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 only crime mentioned of in the order is the one registered under Section 107 of the Code by the Sub Inspector of Police. That 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]). In the absence of Crl.M.C.2728/2016 & Conn.Cases 7 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. Mere fact that a crime happened to be registered against one person is not sufficient enough reason to invoke the provisions under Section 107 of the Code of Criminal Procedure. 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 Act is contemplated, which Act, if committed, is likely to cause breach of peace. AnnexureA1 order does not fulfill the requirement under Section 111 and reveals total non application of mind. Crl.M.C.2728/2016 & Conn.Cases 8 11.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. 12.As such, in view of such blatant abuse of the powers under Sections 107 and 111 Cr. P.C., it is only just and proper, to secure the interest of justice and to prevent abuse of powers of the Court, that Annexure-A1 order be quashed. Crl.M.C.2728/2016 & Conn.Cases 9 The petitions are allowed. All further proceedings pending against the petitioners in M.C.Nos.808/2016, 809/2016 & 810/2016 on the file of the Sub Divisional Magistrate Court, Kollam will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps