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High Court of KeralaSingle JudgePetition allowed; Annexure-A1 order quashed; al...

Crl.M.C. No. 7545 of 2016

Case / Petition Number:Crl.M.C. No. 7545 of 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V
Judgment Date
2016-11-22
Court Decision / Holding
The petition is allowed; Annexure-A1 order is quashed; all further proceedings in MC No. 146 of 2016 on the file of the Sub Divisional Magistrate, Kasaragod are quashed.
Final Disposition
Petition allowed; Annexure-A1 order quashed; all further proceedings in MC No. 146/2016 are quashed.

Parties to the Case

Appellants / Petitioners

  • Ashkar K
  • Muhammed Fairoos alias Fairoos
  • Abdul Samad M.T.P.
  • Rafeeq M.T.P.
  • Kamaruddeen M.T.P.
  • Ibrahim K.
  • Manso or K.
  • Jalis C.
  • Yunus V.V.

Respondents

  • The Sub Divisional Magistrate Kasaragod at Khanhangad
  • The Sub Inspector of Police Chandera Police Station, Kasaragod District
  • The State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri T. Madhu
  • • Sri Shahid Azeez

Counsels for Respondents

  • • Public Prosecutor, Sri Amjad Ali

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous case under section 482 Cr.P.C., challenging Annexure-A1, the order of the Sub Divisional Magistrate, Kasaragod, dated 13.04.2016, requiring the petitioners to appear before the officer and show cause why they should not enter into a bond of Rs.25,000 with two solvent sureties for keeping peace for one year, in Crime No. 763/2015 of Chandera Police Station. The petitioners (nine individuals named in the caption) contend that the order under sections 107 and 111 Cr.P.C. is vitiated for lack of substance, adequacy of materials, and a failure to demonstrate likelihood of breach of peace; they argue the order is silent on what act is contemplated and on the specific grounds that would likely lead to breach of peace. They rely on authorities such as Moidu v. State of Kerala (Full Bench) and other Single Judge decisions (Peethambaran, Santhosh MV, Bejoy KV) to urge strict compliance with the prerequisites of sections 107/111 Cr.P.C. The respondents’ detailed submissions are not elaborated in the document, but the court recorded rival submissions. The High Court holds that Annexure-A1 violates statutory mandates, evidences total non-application of mind, and constitutes abuse of power; the petition is allowed, quashing Annexure-A1 and all further proceedings in MC No.146/2016.

Provisions of Law Cited

Section 482 Cr.P.C.Section 107 Cr.P.C.Section 111 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Annexure-A1 order under Sections 107 and 111 Cr.P.C. is defective for failing to disclose the substance of the accusation, omitting essential particulars of the crime, and lacking any demonstrable likelihood of breach of peace. They challenged the basis of proceeding under 107 on vague grounds and asserted that the order does not satisfy Section 111 requirements of specifying the acts likely to cause breach of peace. They relied on Moidu v. State of Kerala (Full Bench) and other precedents (Peethambaran, Santhosh MV, Bejoy KV) to urge that a preventive order must be grounded on concrete materials rather than conjecture. Respondents’ counsel submitted that the State’s interest in maintaining public peace justifies preventive action under 107/111 and that the record contains materials enabling reasonable belief of potential disturbance; however, the document records only the rival contentions without detailed expositions.

Contentions of Respondents

The detailed submissions of the respondents are not extensively captured in the document. The Public Prosecutor, Sri Amjad Ali, argued that the order was a preventive measure consistent with statutory requirements to avert breach of peace and cited the need for caution in preventive action; the court, however, ultimately found the order lacking in explicit grounds and evidence.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Moidu v. State of Kerala1982 KHC 139 : 1982 KLT 578PositiveFull Bench decision cited to emphasize proper grounds and careful application of sections 107/111; used to support the view that mere involvement in crimes cannot justify preventive orders without concrete grounds.
Peethambaran v. State of Kerala1980 KHC 239 : 1980 KLT 876 : ILR 1980 (2) Ker. 589Mentioned OnlyCited among authorities by petitioners but not explicitly relied upon in the final judgment’s reasoning.
Santhosh M.V. and Others v. State of Kerala2014 (2) KLD 519Mentioned OnlyCited as part of the petitioners’ authorities; no explicit application in the decision.
Bejoy K.V. v. State of Kerala2015 (2) KLD 889Mentioned OnlyCited among authorities; not a decisive basis for the court’s final order.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938 Crl.MC.No. 7545 of 2016 () --------------------------- AGAINST THE ORDER/JUDGMENT IN MC 146/2016 of SUB DVL.MAGISTRATE,KOZHIKODE DATED 30-03-2016 CRIME NO. 222/2016 OF CHANDERA POLICE STATION , KASARGOD PETITIONER(S): ------------- 1. ASHKAR K AGED 26 YEARS S/O ABOOBAKER RESIDIDNG AT RISWANA MANZIL PARAYAMMANAM METTAMMAL, SOUTH THRIKKARIPUR VILLAGE HOSDURG TALUK KASARAGOD DISTRICT 2. MUHAMMED FAIROOS ALIAS FAIROOS AGED 19 YEARS, S/O NURUDDEEN RESIDING AT APPENTTILLATH HOUSE METTAMMAL SOUTH THRIKKARIPUR VILLAGE HOSDURG TALUK, KASARAGODE DISTRICT 3. ABDUL SAMAD M.T.P. S/O SAMAD AGED 19 YEARS RESIDING AT MANAKKATT THEKKEPEEDIKAIL HOUSE METTAMMAL, SOUTH THRIKKARIPUR VILLAGE HOSDURG TALUJK, KASARAGODE DISTRICT 4. RAFEEQ M.T.P. S/O AHAMMAD HAJI, RESIDING AT MANAKKATT THEKKEPEEDIKAIL HOUSE METTAMMAL, SOUTH THRIKKARIPUR VILLAGE HOSDURG TALUK, KASARAGOD DISTRICT 5. KAMARUDDEEN M.T.P. S/O KUNHIMOIDEEN, AGED 39 YEARS RESIDING AT MANAKKATT THEKKEPEEDIKAIL HOUSE METTAMMAL, SOUTH THRIKKARIPUR VILLAGE HOSDURG TALUK, KASARAGOD DISTRICT 6. IBRAHIM K. S/O SALAVUDDEEN AGED 20 YEARS RESIDING AT K.S. HOUSE METTAMMAL, SOUTH THRIKKARIPUR VILLAGE **HOSDURG TALUK, KASARAGOD DISTRICT** 7. MANSOOR K. S/O MUSTHAFA, AGED 19 YEARS RESIDING AT KUNHIMOTTA HOUSE, NEAR NORTH METTAMMAL SCHOOL, METTAMMAL, HOSDURG TALUK KASARAGOD DISTRICT 8. JALIS C. S/O ISMAIL, AGED 21 YEARS RESIDING AT CHELOTH HOUSE, MOUVALAPPIL, PARAMMAD METTAMMAL, SOUTH THRIKKARIPUR VILLAGE HOSDURG TALUK, KASARAGOD DISTRICT CONTD.. :2: Crl.MC.No. 7545 of 2016 () --------------------------- 9. YUNUS V.V. S/O KUNHABDULLA, AGED 24 YEARS RESIDING AT VALIYAVALAPPIL HOUSE, METTAMMAL SOUTH THRIKKARIPUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT BY ADVS.SRI.T.MADHU SRI.SHAHID AZEEZ RESPONDENT(S): -------------- 1. THE SUB DIVISIONAL MAGISTRATE KASARAGOD AT KANHANGAD, OFFICE OF THE SUB DIVISIONAL MAGISTRATE, KASARAGOD AT KANHANGAD, KANHANGAD P.O. KASARAGOD DISTRICT 2. THE SUB INSPECTOR OF POLICE CHANDERA POLICE STATION, KASARAGOD DISTRICT 3. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031 R BY PUBLIC PROSECUTOR, SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD.... :2: Crl.MC.No. 7545 of 2016 () --------------------------- ## APPENDIX ## PETITIONERS EXHIBITS : ------------------- ANNEXURE A2 THE TRUE COPY OF THE ORDER DATED 30.03.2016 IN M.C. NO. 146 OF 2016 ON THE FILES OF THE SUB DIVISIONAL MAGISTRATE'S COURT, KASARAGOD AT KANHANGAD. RESPONDENTS EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 7545 of 2016 - - - - - - - - - - - - - - - - Dated 22[nd] November, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners challenge Annexure-A1 order of the Sub Divisional Magistrate, Kasaragod. By the aforesaid order, the petitioners have been called upon to appear before the said officer in person at 11 a.m. on - 13.04.2016 and to show cause why they should not be required to enter into a bond of Rs.25,000/- with two solvent 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.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. Though it is Crl.M.C. No. 7545 of 2016 2 stated in the order that Sub Inspector of the Chandera Police Station has submitted the copy of FIR and other details of Crime No. 763 of 2015 of Chandera Police Station, the order is deafeningly silent as to the other details of the crime. 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** [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) Crl.M.C. No. 7545 of 2016 3 KLD 519] and **Bejoy K.V. V State of Kerala** [2015 (2) KLD 889]. - 4.Heard the rival submissions and have perused the materials on record. 5.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 mere fact that the petitioners are involved in criminal acts could not have been taken as the basis to issue a preventive order against the petitioners herein. The reasons which persuaded 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 they should not enter into recognisances, and on their failure, to make an order under the section. (see **Moidu v. State of Kerala** [1982 Crl.M.C. No. 7545 of 2016 4 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-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. Annexure-A1 order does not fulfill the requirement under Section 111 and reveals total non application of mind. 6.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. The petition is allowed. All further proceedings against the petitioners now pending as M.C.No. 146 of 2016 on Crl.M.C. No. 7545 of 2016 5 the file of the Sub Divisional Magistrate Court, Kasaragod are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** SKS //TRUE COPY// P.A. TO JUDGE