Biju, s/o Poulose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **Crl.MC.No. 4523 of 2016** **-----------------------** **MC 124/2016 OF SUB DIVISIONAL MAGISTRATE COURT, FORT KOCHI CRIME NO. 986/2016 OF KALADY POLICE STATION, ERNAKULAM** **....** **PETITIONER(S)/COUNTER PETITIONER:** **--------------------------------** **BIJU, S/O.POULOSE, THOTTANKARA HOUSE, KAIPATTOOR, KALADY, ERNAKULAM DISTRICT.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KALADY POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 4523 of 2016** **-----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **------------------------** **ANNEXURE A1 TRUE COPY OF THE ORDER IN MC.NO.124/2016 PASSED BY THE SUB DIVISIONAL MAGISTRATE COURT, FORT KOCHI DTD.12.4.2016.** **ANNEXURE A2. TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.986/2016 OF KALADY POLICE STATION DTD.31.3.2016. RESPONDENT(S)' ANNEXURE:** **------------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.4523 of 2016 ----------------------------------------Dated this the 26[th] day of July, 2016** ## **O R D E R** 1.The proceeding initiated by the Sub Divisional Magistrate, Fort Kochi under Section 107 of the Code of Criminal Procedure against the petitioner 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 petitioner has been directed to appear before the said officer in person at 11.30 a.m. on 26.4.2016 and to show cause why he should not be required to enter into a bond of Rs.20,000/each and also to furnish security by executing a bond of two sureties for the like sum for keeping peace for a term Crl.M.C.4523/2016 2 of one year. - 3.Heard the learned counsel appearing for the petitioner 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 . The notice reveals total non application of mind as the only 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 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** Crl.M.C.4523/2016 3 - **[** 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 petitioner was continuously involving himself in criminal offences 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 Crl.M.C.4523/2016 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 Crl.M.C.4523/2016 5 ## 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.4523/2016 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."_ 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 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 petitioner herein. (see **Santhosh M.V. and others v. State of Kerala** [2014 (3) KLT 837; Girish P and Others Crl.M.C.4523/2016 7 v. State of Kerala [2009 (4) KHC 929]). 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. 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 petitioner was 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. Annexure- Crl.M.C.4523/2016 8 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 tranquillity. 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.As such , in view of such blatant abuse of the powers under Sections 107 and 111 Cr. P.C., it is only just and Crl.M.C.4523/2016 9 proper , to secure the interest of justice and to prevent abuse of powers of the Court, that Annexure-A1 order be quashed. The petition is allowed. M.C.No.124 of 2016 of the Sub Divisional Magistrate Court, Fort Kochi will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps