Balamurugan @ Balu v. State of Kerala and The Sub Inspector of Police, Marayoor Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938** ## **Crl.MC.No. 5119 of 2016** **-------------------------------------** ## **M.C.NO.140/2016 OF THE SUB DIVISIONAL MAGISTRATE COURT, DEVIKULAM --------------------** ## **PETITIONER(S)/COUNTER PETITIONER :** **------------------------------------------------------------** **BALAMURUGAN @ BALU, S/O.KANTHAN, SREEKANTHAN HOUSE, KANTHALLUR, DEVIKULAM TALUK, IDUKKI DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S)/STATE & COMPLAINANT : --------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031.** **2. THE SUB INSPECTOR OF POLICE, MARAYOOR POLICE STATION, IDUKKI DISTRICT, PIN-685 602.** - **BY PUBLIC PROSECUTOR SRI. AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 5119 of 2016** ## **------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE-A TRUE COPY OF THE ORDER ISSUED BY THE S.D.M DEVIKULAM DATED 04.04.2016 AS M.C.NO.140/2016. ANNEXURE-B TRUE COPY OF THE JUDGMENT DATED 28.03.2016 IN C.C NO.317/2012 OF THE J.F.C.M., DEVIKULAM. ANNEXURE-C TRUE COPY OF THE JUDGMENT DATED 30.04.2016 IN C.C NO.122/2005 OF THE J.F.C.M., DEVIKULAM.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.5119 of 2016 ----------------------------------------Dated this the 9[th] day of August, 2016** ## **O R D E R** - 1.The petitioner is proceeded under Section 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the Sub Divisional Magistrate, Devikulam on a report filed by the Sub Inspector of Police, Marayoor Police Station. By Annexure-A order, the petitioner has been called upon to appear before the said officer in person at 3.00 p.m. on 11.4.2016 and to show cause why he should not be required to enter into a bond of Rs.1,00,000/- with two sureties of Rs.50,000/- each for the like amount for keeping peace for a term of one year. - 2.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. - 3.It is submitted by the learned counsel that the entire proceedings initiated by the learned Magistrate against the Crl.M.C.5119/2016 2 petitioner herein is illegal. It is pointed out that to arrive at the requisite satisfaction, the learned Magistrate has relied on a report submitted bythe Sub Inspector of Police Marayoor Police Station. In the said report it is mentioned that the petitioner is involved in crime No's 83/04, 11/05 , 30/10 and 155/ 2014 of Marayoor Police Station. It is submitted that in those crimes, two of which were registered more than a decade back, final report was laid before Court and the petitioner has been acquitted. Reliance is also placed on Annexure B and C judgments of the Judicial Magistrate of the I Class, Devikulam to substantiate this fact . Those crimes are remote in point of time and could not have been the basis of passing a preventive order is the next submission. It is also submitted that the impugned order is silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioner is likely to disturb peace and tranquility in a particular locality and Crl.M.C.5119/2016 3 in order to prevent the same, it is necessary to take preventive action against him. 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]. 4.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Marayoor to the effect that the petitioner is likely to indulge in further criminal acts causing breach of peace and public tranquility in the area Crl.M.C.5119/2016 4 that preventive action was initiated. 5.I have perused the materials on record as well. 6.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.5119/2016 5 the grounds, which, in his opinion as sufficient for proceeding further. 7.Obviously, as is borne out from Annexures-B and C judgments of the learned Magistrate, Devikulam, the petitioner has been acquitted in C.C.No.317 of 2012 and C.C.No.122 of 2005 both of which had arisen from Crime No.202 of 2012 and Crime No.11 of 2005 of the Marayoor Police Station. It is also borne out from Annexure-A that the crimes registered against the petitioner are remote in time. 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 6 Crl.M.C.5119/2016 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. - 8.Having regard to the above facts, Annexure-A order cannot be sustained under law and the same is quashed. All further proceedings against the petitioner in M.C.No.140 of 2016 of the Sub Divisional Magistrate Court, Devikulam, will stand quashed. This petition will stand allowed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps