Faisal vs State of Kerala

CRL.MC NO. 9789 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 CRL.MC NO. 9789 OF 2023** **CRIME NO.0/0 OF , AGAINST THE ORDER/JUDGMENT MC 434/2023 OF SUB DIVISIONAL** ## **MAGISTRATE, THRISSUR** ## **PETITIONER/S:** FAISAL AGED 34 YEARS S/O MOITHUNNY, THAIKKANDIPARAMBIL HOUSE,OTTATHANGU, THEKKANCHERY DESOM, MANATHALA VILLAGE,THRISSUR DISTRICT, PIN - 680506 BY ADV ANWIN JOHN ANTONY ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM (REPRESENTING SUB INSPECTOR, CHAVAKKAD POLICE STATION), PIN - 682031 ## **OTHER PRESENT:** SMT SREEJA V, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 9789 OF 2023 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------Crl.M.C. No. 9789 of 2023 -------------------------------------Dated this the 5[th] day of December, 2023** ## **O R D E R** This Crl.M.C. is filed challenging the order passed by the Sub Divisional Magistrate Court, Thrissur in MC No. 434/2023. The short point raised by the petitioner is that only a single case is registered against the petitioner and the substance of the allegation is not mentioned in the impugned order. Hence, it is submitted that Annexure-1 order is unsustainable. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The short point to be decided in this case is whether the Sub Divisional Magistrate justified in issuing a preliminary order as evident by Annexure-1 based on a single criminal case registered against the petitioner. It is true that the offence alleged against the petitioner in that case is under Sec.20 (b) (II) A of the NDPS Act and Sec.77 of the Juvenile Justice Act. CRL.MC NO. 9789 OF 2023 3 But in **Santhosh M.V. and others v. State of Kerala and others** [2014 (3) KLT 2837], this Court observed that merely because the counter petitioner was made an accused in a case alone is not sufficient to initiate proceedings against him under Sec. 107 Cr.P.C. The relevant portion of the above judgment is extracted hereunder : 17. “It is clear from the above order that there is nothing mentioned in the order regarding the reason for the authority to come to a conclusion that the activities of the counter petitioners in that proceedings gave a reasonable apprehension in the mind of the authority that they are likely to cause breach of peace and disrupt public tranquility at a particular time at a particular place which requires immediate intervention of the authorities to prevent such activities and for that purpose, they have to be called upon to enter on a bond to keep good behaviour for a particular period. In that case, the learned Sub Divisional Magistrate has only extracted the wordings in the printed form and extracted the case numbers in which the counter petitioner was made an accused. He had not mentioned as to how far that is relevant for the purpose of considering the question as to whether the counter petitioners have to be called upon to enter on a bond to prevent public tranquility or breach of peace in the locality. As discussed above, the very purpose of initiating proceedings under S.107 of the Code is to prevent public tranquility and breach of peace expected to be committed by the counter petitioners at a particular place at a particular CRL.MC NO. 9789 OF 2023 4 time or period of time and it was intended to prevent that, that they are called upon to enter on a bond for good behaviour for a particular period, so that they can be prevented from participating in any act causing anticipated public tranquility or breach of peace in a particular place for a particular time. On a reading of the impugned order will go to show that there is nothing to infer from that order even to infer, the reason for the learned Sub Divisional Magistrate to come to such a conclusion that the counter petitioner must be asked to enter into a bond for the purpose mentioned under S.107 to 111 of the Code. The learned Magistrate has only reproduced the form without application of mind simply extracting the case numbers in which the counter petitioners were made accused. It is settled law that merely because the counter petitioner was made an accused in a case alone is not sufficient to initiate proceedings against him under S.107 of the Code. The purpose behind the initiation of proceedings is that there is an apprehension in the mind of the authorities that a particular person or set of persons is / are likely to involve in certain activities which is likely to create breach of peace and disrupt public tranquility in a particular place and presence of such persons in that place itself will be sufficient for that purpose and it is in the public interest that has to be prevented and for that purpose the proceedings will have to be initiated on the basis of the information received by the Sub Divisional Magistrate from the police or from other reliable sources and on that basis , he will have to satisfy the existence of such imminent necessity to initiate proceedings against that particular person and called upon to execute bond on good behaviour for a particular period so as to prevent that person causing any breach of peace or public tranquility in a particular place at that particular time. But a reading of the order of the CRL.MC NO. 9789 OF 2023 5 Sub Divisional Magistrate will go to show that there is no application of mind by the learned Sub Divisional Magistrate in all these cases, but simply extracted the form quoted some crime numbers some of them were committed some two or three years ago and issued the order without passing any order as contemplated under S.111 of the Code so as to enable the counter petitioner to meet the grounds on which the proceedings have been initiated against him and as such, the procedure adopted by the Sub Divisional Magistrate, Thalassery in initiating proceedings against the petitioners is illegal and without application of mind and the same are liable to be quashed as it is not passed in terms of the provisions provided under S.107 to 111 of the Code. So, the petitioners are entitled to the relief claimed in these petitions.” [underline supplied] 4. Similarly, in **Ahammad Kabeer v. State of Kerala and another** [2014 KHC 186], this Court considered the ground necessary for initiating such proceedings, and the relevant portion is extracted hereunder : 12. “This was followed by this Court in the decision reported Girish’s Case (cited supra) wherein also it has been mentioned that unless the substance of the information is not stated in the order passed under S.107 of the Code of Criminal Procedure, the order is bad in law. Merely because a crime is registered is not a ground to initiate the proceedings under S.107 of the Code of Criminal Procedure. In this case also even in Annexure - D report, it is only mentioned that there were three crimes registered against the petitioner namely Crime No.164/07 CRL.MC NO. 9789 OF 2023 6 under S.294(b) and S.506 read with S.34 of the Indian Penal Code and that is pending for trial, Crime No. 502/2008 under S.143, S.147, S.148, S.294 (b), 447, 323, 324 and 149 of the Indian Penal Code and Crime No. 1039/09 under S.294(b), S.341, S.324, S.302 read with S.34 of the Indian Penal Code which is now pending as CP No. 134/10 in trial. The counsel for the petitioner submitted that in all these cases the petitioner is on bail. In the first case namely Crime No. 164/2007, he was tried and acquitted by the Court. In the second a case namely Crime No. 502/2008, it was taken on file as CC No. 1768/08 and in that case after trial the case was posted for judgment. The murder case is now ripe for trial. So except these, there is nothing mentioned even in Annexure - D report that after the registration of these cases, the petitioner had involved in any other criminal activity for which any new crimes have been registered. So under the circumstances, there is some force in the submission made by the counsel for the petitioner that there is no valid information or substance furnished by the Sub Inspector of Police while sending Annexure - D report so as to enable the Sub Divisional Magistrate to initiate proceedings against the petitioner under S.107 of the Code of Criminal Procedure. So in the absence of any valid reason stated in Annexure - D report and also in the absence of any particulars mentioned in Annexure - A order which satisfied the second respondent for initiating proceedings against the petitioner under S.107 of the Code of Criminal Procedure or to issue an order under S.111 of the Code of Criminal Procedure, initiating actions by the Sub Divisional Magistrate against the petitioner under S.107 and S.111 of the Code is unsustainable in law and the same is liable to be quashed. In the result, the petition is allowed. The proceedings initiated CRL.MC NO. 9789 OF 2023 7 against the petitioner by the second respondent as MC No. 720/13 and further issuance of Annexure - A order under S.111 of the Code of Criminal Procedure against the petitioner are hereby quashed. Office is directed to communicate this order to the second respondent immediately.” 5. Similarly, the order dated 06.07.2018 in Crl.M.C. No. 4086/2018, the same point is considered. It will be beneficial to extract the relevant portion. “3. I have perused Annexure-A1 order issued by the learned Sub Divisional Magistrate. It is stated that the petitioner is of aggressive nature and he commits crimes repeatedly. At the same time in the order it is specifically mentioned that he is accused only in one case, Crime No.2044 of 2017 registered for the offences under Sections 114, 143, 147, 294(b), 324, 427 and 452 read with 149 IPC. The statement that he commits crime repeatedly is wrong. There is no material to support the prosecution case. The facts of the case are not sufficient to attract Section 107 Cr.P.C. In the result, this Crl.M.C. is allowed. The proceedings in M.C. No.1012 of 2017 on the file of Sub Divisional Magistrate, Kollam are quashed.” 6. From the above dictum laid down by this Court, it is clear that merely because the petitioner was made an accused in a criminal case, that itself is not sufficient to initiate proceedings against him under Sec. 107 Cr.P.C. Therefore, I am CRL.MC NO. 9789 OF 2023 8 of the considered opinion that Annexure-1 is to be set aside. Therefore, this Crl.M.C. is allowed. 1) All further proceedings based on Annexure-1 proceedings issued by the Sub Divisional Magistrate, Thrissur in MC No.434/2023 is quashed. But I make it clear that this will not stand in the way of the authorities proceeding afresh in accordance with law. **sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 9789 OF 2023 9 ## **APPENDIX OF CRL.MC 9789/2023** PETITIONER ANNEXURES Annexure-1 TRUE COPY OF THE ORDER DATED 11.09.2023 IN M.C NO. 434/2023 PASSED BY SUB DIVISIONAL MAGISTRATE,THRISSUR