Crl.M.C. No. 4479 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938** ## **Crl.MC.No. 4479 of 2016** ## **------------------------** **MC 131/2015 of SUB DIVISIONAL MAGISTRATE COURT,FORT KOCHI ---------------** **PETITIONERS:** **-----------** **1. C.K.NATESAN, AGED 86 YEARS,S/O. C K KUNJAYYAN, CHEMMATTUVELY HOUSE, NADAKKAV P.O, UDAYAMPEROOR 682 307.** **2. C N SAMEER, AGED 52 YEARS, S/O. C K NATESAN CHEMMATTUVELY HOUSE, NADAKKAV P.O, UDAYAMPEROOR 682 307** ## **BY ADV. SMT.VIJAYAKUMARI** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **2. SUB INSPECTOR OF POLICE, UDAYAMPEROOR POLICE STATION.** **BY PUBLIC PROSECUTOR SRI.T.R.RENJITH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **Crl.MC.No. 4479 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ------------------------ANNEXURE 1 A TRUE COPY OF THE DECREE IN OS 1074 OF 2008 PASSED BY THE MUNSIFF COURT. ANNEXURE 2 A TRUE COPY OF THE APPLICATION FOR POLICE PROTECTION DATED 17/04/2015. ANNEXUREA3 TRUE COPY OF SUMMONS ISSUED TO THE 1ST PETITIONER. ANNEXURE 3(A) TRUE COPY OF SUMMONS ISSUED TO THE 2ND PETITIONER. ANNEXURE 4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS ANNEXURE5 TRUE COPY OF THE APPLICATION DATED 19-06-2015 FOR CERTIFIED COPY O FILED BY THE COUNSEL FOR THE 2ND PETITIONER. ANNEXURE 6 TRUE COPY OF THE PETITION DATED 14/07/2015 FILED BY THE COUNSEL FOR THE 1ST PETITIONER. ANNEXURE 6A TRUE COPY OF THE PETITION DATED 14/07/2015 FILED BY THE COUNSEL FOR THE 2ND PETITIONER. ANNEXURE 7 A TRUE COPY OF THE PETITION DATED 03/10/2015 TO RECALL WARRANTS BY THE PETITIONERS. ANNEXURE 8 A TRUE COPY OF THE PETITION DATED 24/05/2016 FILED BY THE PETITIONERS. RESPONDENT(S)' ANNEXURES NIL ------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.4479 of 2016** ## **----------------------------------------Dated this the 7[th] day of September, 2016** ## **O R D E R** - 1.The petitioners are being proceeded against under Section - 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the Sub Divisional Magistrate, Fort Kochi on a report filed by the Sub Inspector of Police, Udayamperoor Police Station. By Annexures-3 and 3(a) orders, the petitioners were called upon to appear before the said officer in person at 11.00 a.m. on 30.6.2015 and to show cause why they should not be required to enter into a bond of Rs.20,000/- each and to furnish security by a bond of two sureties for the like amount for keeping peace for a term of one year. - 2.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. - 3.It is submitted by the learned counsel that the Crl.M.C.4479/2016 2 - proceedings have been initiated on the basis of a solitary crime, registered inter alia for offence under section 107 and 109 of the Code of Criminal procedure as crime No. 315 of 2015. The order is also 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 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 order falls short of the mandatory requirements under Section 111 of the Code. - 4.The learned Public Prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Udayamperoor Police Station that the petitioners are likely to indulge in further criminal acts Crl.M.C.4479/2016 3 causing breach of peace and public tranquility in the area 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 Crl.M.C.4479/2016 4 Magistrate before issuing notice under 111 must record the grounds, which, in his opinion as sufficient for proceeding further. 7.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_ Crl.M.C.4479/2016 5 _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 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."_ 8.On perusing Annexure-3 and Annexure-3(a) orders, 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 Crl.M.C.4479/2016 6 petitioners are involved in a single crime 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]). 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-3 and Annexure-3(a) orders do 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 Crl.M.C.4479/2016 7 - evidence before the learned Magistrate that some definite Act is contemplated, which Act, if committed, is likely to cause breach of peace. Annexure-3 and Annexure-3(a) orders do not fulfill the requirement under Section 111 and reveals total non application of mind. - 9.Furthermore more than 6 months have elapsed from the date of commencement of the enquiry and it does not appear that the learned magistrate has recorded special reasons to continue the proceedings. - 10.I am of the view that the petitioners are entitled to succeed. - Accordingly this petition is allowed. All further proceedings against the petitioners now pending as M.C.No.131 of 2015 on the file of the Sub Divisional Magistrate Court, Fort Kochi, will stand quashed. ## **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps