Crl.MC Nos. 3314 of 2019 & connected petitions (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** **Crl.MC.No.3314 OF 2019(D)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 59/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI CRIME NO.398/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **BIJU, AGED 49 YEARS, S/O GEORGE, CHAKKALAKKAL HOUSE, KARTHEDAM, MALIPURAM P.O., KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682 511.** **BY ADV. SRI.T.N.SURESH** **RESPONDENT/RETITIONER:** **STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SMT.M.K.PUSHAPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.NOS.3317/2019(D), 3319/2019(D), 3321/2019(E), 3324/2019(E), 3326/2019(E), 3328/2019(E), 3330/2019(E) AND 3331/2019(F), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3317 OF 2019(D)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 54/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.377/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **XAVIER T. J., AGED 50 YEARS, THUNDIPARAMBIL HOUSE, PUTHUVYPU P.O., KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682 508.** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA,** **REPRESENTING SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** ## **OTHER PRESENT:** **SRI. M. S. BREEZ SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) AND OTHER CONTD. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3319 OF 2019(D)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 52/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.350/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **SUJITH, AGED 24 YEARS, S/O.SUNIL, PALLATH HOUSE, PUTHUVYPU.P.O, KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682508** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SRI. M. S. BREEZ SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) AND OTHER CONTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases 4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** **Crl.MC.No.3321 OF 2019(E)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 57/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI.** **CRIME NO.389/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **RADHAKRISHNAN, AGED 48 YEARS, S/O. UNNI, KAROLIL HOUSE, ELANKUNNAPUZHA P.O, KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682503.** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SRI. M. S. BREEZ SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) ALONG WITH OTHER CONTED. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3324 OF 2019(E)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 54/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.375/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **BIJU K.T., AGED 43 YEARS, S/O.THILAKAN, KANNANGANATTU HOUSE, OCHENTHURUTH P.O., KOCHI TALUK, ERNAKULAM DISTRICT, PIN- 682508.** ## **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA, REPRESENTING** **SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** ## **SMT.M.K.PUSHPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) ALONG WITH OTHER CONTD. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **6** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3326 OF 2019(E)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 49/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.333/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **XAVIER, AGED 41 YEARS, S/O.PAILY CHEMMAYATH HOUSE, ANCHANGADI, ELANKUNNAPUZHA P.O., KOCHI TALUK, ERNAKULAM DISTRICT,PIN-682 503** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA, SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SMT.M.K.PUSHPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) ALONG WITH OTHER CONTD. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **7** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3328 OF 2019(E)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 51/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.344/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **P.R.RAJU, AGED 52 YEARS, S/O.RAGHAVAN, PARRATTY HOUSE, PUTHUVYPU P.O., KOCHI TALUK, ERNAKULAM DISTRICT, PIN- 682508.** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SMT.M.K.PUSHPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) ALONG WITH OTHER CONTD. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases 8** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3330 OF 2019(E)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 56/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.382/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **MAGLIN, AGED 50 YEARS, D/O.YOHANNAN, UDAYAM HOUSE, VALIYAVELLIKKARA, ATTIPPARA P.O., THIRUVANANTHAPURAM DISTRICT, NOW RESIDING AT PUTHUVYPPU P.O., PIN- 682508.** **BY ADV. SRI.T.N.SURESH** **RESPONDENT/S:** **STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SMT.M.K.PUSHPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) ALONG WITH OTHER CONTD. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **9** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **Crl.MC.No.3331 OF 2019(F)** **AGAINST THE PRELIMINARY ORDER DATED 10.04.2019 IN MC 58/2019 OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO.392/2019 OF MULAVUKAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **SEBAN @ SEBIN, AGED 32 YEARS, S/O.JOHNSON, ITHIPARAMBIL HOUSE, PUTHUVYPU P.O., KOCHI TALUK, ERNAKULAM DISTRICT, PIN- 682508.** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT/PETITIONER:** **STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, MULAVUKADU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **SRI. M. S. BREEZ SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2019, ALONG WITH Crl.MC.3314/2019(D) ALONG WITH OTHER CONTED. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **10** ## **ORDER** In these petitions filed under Section 482 of the Code of Criminal Procedure, the petitioners challenge Annexure-A1 orders issued by the Sub Divisional Magistrate, Fort Kochi. By the said orders, the petitioners herein have been called upon to appear before the court in person at 11 a.m. on 16.04.2019 and to show cause why they should not be required to enter into a bond of Rs.50,000/- with two solvent sureties for the like amount for keeping peace for a term of one year under Section 107 of the Cr.P.C.. 2. The petitioners are the local residents of the Elamkunnapuzha Panchayat, within the limits of Mulavukadu Police Station. It appears that the Indian Oil Corporation decided to set up a LPG Terminal in the area for storing cooking gas and other facilities. According to the petitioners, setting up a storage facility in the island would pose a threat to their lives and they started protesting against the proposal. The Indian Oil Corporation, on the other hand, contended that all statutory clearances had been obtained and the National Green Tribunal had also given them the go ahead. 3. For carrying out protest in the open and for obstructing the free movement of traffic, several crimes were registered against the protesters in the year 2017. It is thereafter that the Sub Inspector of Police, Mulavukadu submitted a report before the Sub Divisional Magistrate, Fort Kochi, through the **Crl.MC.Nos. 3314 of 2019 & other contd. cases 11** Assistant Commissioner of Police, Ernakulam, seeking initiation of action under Section 107 of the Cr.P.C. The learned Sub Divisional Magistrate, based on the said report, has passed the impugned orders. 4. The learned counsel appearing for the petitioners contended that the orders passed by the learned Magistrate cannot be sustained. According to the learned counsel, the learned Magistrate has failed to give sufficient notice as to what incited the Magistrate to take action under Section 111 of the Cr.P.C. He would urge that even the substance of accusation has not been mentioned in the orders. The learned counsel would assert that the liberty of a person can only be curtailed according to its own procedure and not on the whim of the Magistrate concerned. He refers to the orders and it is contended that the materials before the learned Magistrate were 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 orders under Section 107 did not meet the requirement of Section 111 of the Code. Reliance is placed on **Madhu Limaye v. Sub Divisional Magistrate, Monghyr[1]** , the decision of this Court in **Moidu v. State of Kerala[2]** and the decision of the learned Single Judges in **Peethambaran v. State of Kerala[3]** , **Santhosh M.V. and Others v. State of** 1 [AIR 1971 SC 2486] 2 [1982 KLT 578] 3 [1980 KLT 876] **Crl.MC.Nos. 3314 of 2019 & other contd. cases 12** ## **Kerala[4]** and **Bejoy K.V. v. State of Kerala[5]** . 5. Heard the learned Senior Public Prosecutor as well and I have perused the materials on record. 6. On a perusal of Annexure-A1 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 petitioners herein are involved in certain criminal acts could not have been taken as the basis to issue a preventive order against them. The reasons which persuaded the Sub Divisional Magistrate to initiate proceeding are 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 the 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** (supra)]. 7. It is also not open to the learned Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-A1 orders do not state in what way or with reference to what manner, 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 orders do not fulfill the requirement under Section 111 and reveal > 4 [2014 (2) KLD 519] > 5 [2014 (2) KLD 519] **Crl.MC.Nos. 3314 of 2019 & other contd. cases 13** total non application of mind. 8. As such, in view of such blatant abuse of the powers under Sections 107 and 111 of the 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 orders be quashed. In the result, these petitions are allowed. All further proceedings against the petitioners in M.C.Nos.49/2019, 51/2019, 52/2019, 54/2019, 55/2019, 56/2019, 57/2019, 58/2019 & 59/2019 on the file of the Sub Divisional Magistrate Court, Fort Kochi, will stand quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/31.5.19 //TRUE COPY// P.A. TO JUDGE **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **14** ## **APPENDIX OF Crl.MC 3314/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10.4.2019 IN MC NO.59/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI.** ## **APPENDIX OF Crl.MC 3317/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10.04.2019 IN MC NO.55/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI** ## **APPENDIX OF Crl.MC 3321/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **THE ORIGINAL PRELIMINARY ORDER DATED 10.04.2019 IN MC NO.57/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI.** ## **APPENDIX OF Crl.MC 3324/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10.04.2019 IN M.C.NO.54/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI.** **Crl.MC.Nos. 3314 of 2019 & other contd. cases** **15** ## **APPENDIX OF Crl.MC 3326/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10/04/2019 IN MC NO.49/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI** ## **APPENDIX OF Crl.MC 3328/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10.04.2019 IN M.C.NO.51/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI.** ## **APPENDIX OF Crl.MC 3330/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10.04.2019 IN M.C.NO.56/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI.** ## **APPENDIX OF Crl.MC 3331/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE ORIGINAL PRELIMINARY ORDER DATED 10.04.2019 IN M.C.NO.58/2019 PASSED BY THE SUB DIVISIONAL MAGISTRATE FORT KOCHI.**