High Court of KeralaSingle Judge2016-08-10Petition allowed; Annexure-A9 order quashed; pr...

Femina v Sub Divisional Magistrate Kozhikode & Others

Case / Petition Number:Crl.MC.No. 1551 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2016-08-10
Court Decision / Holding: The petition is allowed. All further proceedings against the petitioners in M.C.384/2015 of the Sub Divisional Magistrate Court, Kozhikode are quashed. Annexure-A9 order directing the petitioners to enter into bonds to keep peace is quashed for non-compliance with Section 111 CrPC and for lack of specific grounds indicating likelihood of breach of peace.
Final Disposition: Petition allowed; Annexure-A9 order quashed; proceedings against petitioners in MC 384/2015 quashed.

Parties to the Case

Appellants / Petitioners

Femina
Hussain
Siraj
Shihab
Rukiya

Respondents

The Sub Divisional Magistrate, Sub Divisional Magistrate Court, Kozhikode-673001
Sub Inspector of Police, Nallalam Police Station, Nallalam through Public Prosecutor, High Court of Kerala-682031
Muneer M., S/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumana-673001
Musthafa. E.M., S/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumanan-673001
Koya E.M, S/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumanna-673001
Bushara, W/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumanna-673001
Koya P.M, S/O Muhammed S/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumanna-673001
Kadeeja, W/O Abdu, S/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumanna-673001
Raseena, W/O Mushafa, S/O Abdu, Edavanam Meethal, Parakkott Thazham, Perumanna-673001

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Nirmal. S

Counsels for Respondents

• Public Prosecutor Sri. Ajmad Ali
• Adv. Sri. K.M. Firoz
• Smt. M. Shajna
• Sri. S. Kannan
• Smt. Ummul Fida

Case Synopsis & Summary

This Kerala High Court criminal miscellaneous petition challenges an order under Section 107 CrPC issued by the Sub Divisional Magistrate, Kozhikode, directing five petitioners to appear and show cause why they should not be required to furnish bonds for keeping the peace for one year. The petitioners are a family led by Femina (wife of the 3rd respondent) and include Hussain, Siraj, Shihab, and Rukiya. The respondents include the Sub Divisional Magistrate, the Nallalam Police Station, and nine individuals named as respondents, with allegations anchored in matrimonial disputes and various criminal complaints (IPC sections 498A, 294(b), 506(1), 354, 308, etc.), and a reference to the Protection of Women from Domestic Violence Act, 2005. Annexures A1–A9 comprise FIRs, police reports, and court orders, illustrating alleged acts of cruelty and violence. The core dispute concerns compliance with Sections 107 and 111 CrPC, particularly whether the order was grounded in express information and whether the Magistrate recorded adequate grounds to justify preventive action. The petition argues the order is an abuse of power, the grounds are vague, and the action aims at punishment rather than prevention. The High Court ultimately holds that the 107/111 procedure was not properly satisfied and quashes the order and the related proceedings, emphasizing the preventive (not punitive) nature of Section 107 and the need for strict compliance with legal requirements.

Provisions of Law Cited

Section 107 Cr.P.C.Section 111 Cr.P.C.Section 482 Cr.P.C.Protection of Women from Domestic Violence Act, 2005IPC 498AIPC 294(b)IPC 506(1)IPC 354IPC 308

Legal Doctrines & Maxims

sine qua non (grounds for proceeding)
object of Section 107 is prevention and not punishment
power to be exercised strictly in accordance with law

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Section 107 CrPC proceedings must be grounded on concrete information and must be founded on specific grounds as required under Section 111 CrPC. Annexure-A9 failed to state how or on what basis the petitioners were likely to commit a breach of peace; the order relied on a report that did not demonstrate a definite act contemplated or imminent danger. The materials showed crimes largely registered by the 1st petitioner against the 3rd respondent and his family, suggesting possible bias and an inadequate basis for preventive action. They contended that the aim of Section 107 is prevention, not punishment, and that the magistrate must exercise power strictly in accordance with law. They relied on Moidu v. State of Kerala (Full Bench) and other precedents indicating a cautious, standards-based approach to preventive orders, demanding explicit grounds and evidence before action is taken. respondents: The respondents argued that the order was based on a police report indicating ongoing disturbances and frequent criminal activity affecting public peace and tranquility. They contended that the petitioners’ past conduct and the pattern of complaints demonstrate a likely recurrence of violence, justifying preventive action under 107 CrPC with the necessary sections and with reference to existing precedents. They emphasized the role of the Magistrate in protecting public order and cited statutory provisions and prior decisions to support the reasonableness of preventive bonds.

Contentions of Respondents

The respondent-1 (SDM Kozhikode) and respondent-2 (Public Prosecutor) argued that the order was valid under 107 CrPC given the magistrate's satisfaction on the likelihood of breach of peace based on police reports; the grounds cited were meant to prevent future disturbances. They maintained that 111 CrPC requires the magistrate to record information and grounds; such requirements were satisfied by the Annexure-A9 order and the accompanying materials. The accuracy of the allegations against petitioners, reliance on prior domestic disputes and criminal complaints, and the objective of maintaining peace supported the order. The Respondents contended that Court-level review under Article 226/482 should not substitute the magistrate’s discretion where there is a reasonable basis for preventive action, and that the case should be decided on the facts and law as applied by the trial court.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Moidu v. State of Kerala	1982 KHC 139 : 1982 KLT 578	Positive	Quoted as a Full Bench authority supporting the principle that preventive action under Section 107 should be grounded in clear grounds and must aim at prevention, not punishment.
Peethambaran v. State of Kerala	1980 KHC 239 :1980 KLT 876 : ILR 1980 Ker. 589	Positive	Cited for its guidance on the proper exercise of Section 107/111 CrPC and the need for proper grounds and mind in issuing preventive orders.
Santhosh M.V. and Others v State of Kerala	2014 (2) KLD 519	Positive	Cited as part of the series of decisions reinforcing cautious use of preventive powers under CrPC and the necessity of clear grounds.
Bejoy K.V. v State of Kerala	2015 (2) KLD 889	Positive	Cited in the context of preventive action and the requirement of proper grounds; used to support the court’s standard for Section 107/111 CrPC proceedings.

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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** ## **WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938** ## **Crl.MC.No. 1551 of 2016** ## **-----------------------** ## **MC 384/2015 OF SUB DIVISIONAL MAGISTRATE COURT, KOZHIKODE** ## **-------------** ## **PETITIONER(S):** ## **-------------** **1. FEMINA, D/O HUSAIN, KAINBILI HOUSE, THATTATHIL, PUTHOORMADHAM, PANTHEERANKAVU.** **2. HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.** **3. SIRAJ,** - **S/O HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.** **4. SHIHAB** - **S/O HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.** **5. RUKKIYA,** - **W/O HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.** ## **BY ADV. SRI.NIRMAL. S** ## **RESPONDENT(S):** ## **--------------** **1. THE SUB DIVISIONAL MAGISTRATE, SUB DIVISIONAL, MAGISTRATE COURT, KOZHIKODE-673 001.** **2. SUB INSPECTOR OF POLICE, NALLALAM POLICE STATION, NALLALAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031.** **3. MUNEER.M,** - **S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANA-673 001** **PJ** **.....2/-** **..2..** **Crl.MC.No. 1551 of 2016** ## **-----------------------** **4. MUSTHAFA. E.M,** - **S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANNA-673 001.** **5. KOYA E.M, S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANNA-673 001.** **6. BUSHARA, W/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANNA-673 001.** **7. KOYA.P.M, S/O MUHAMMED S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM. PERUMANNA-673 001.** **8. KADEEJA,** - **W/O ABDU, S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM. PERUMANNA-673 001.** **9. RASEENA, W/O MUSHAFA, S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM. PERUMANNA-673 001.** **R1& 2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI R5 BY ADVS. SRI.K.M.FIROZ** **SMT.M.SHAJNA SRI.S.KANNAN SMT.UMMUL FIDA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 1551 of 2016** ## **-----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES -----------------------** |**ANNEXURE A1:**|**TRUE COPY OF THE FIR NO. 0950 DT. 5/8/15 OF**| |---|---| ||**NALLALAM POLICE STATION**| |**ANNEXURE A2:**|**TRUE COPY OF THE ORDER DT. 14/10/15 IN CMP 6241/15**| ||**IN M.C. 76/15 OF THE JFCM-V, KOZHIKODE**| |**ANNEXURE A3:**|**TRUE COPY OF THE FIR NO. 1098/15 DT. 1/9/15 OF**| ||**NALLALAM POLICE STATION**| |**ANNEXURE A4:**|**TRUE COPY OF THE FIR NO 1109/15 DT. 4/9/15 OF**| ||**NALLALAM POLICE STATION**| |**ANNEXURE A5:**|**TRUE COPY OF THE REFERENCE CARD DT. 3/10/15 ISSUED**| ||**BY THE MEDICAL COLLEGE HOSPITAL, KOZHIKODE**| |**ANNEXURE A6:**|**TRUE COPY OF THE ULTRA SOUND SCAN REPORT OF THE 1ST**| ||**PETITIONER**| |**ANNEXURE A7:**|**TRUE COPY OF THE ULTRA SOUND SCAN REPORT OF THE**| ||**3RD PETITIONER**| |**ANNEXURE A8:**|**TRUE COPY OF THE FIR NO. 1278/15 DT. 1/10/15 OF**| ||**NALLALAM POLICE STATION**| |**ANNEXURE A9:**|**TRUE COPY OF THE ORDER DT. 21/10/15 IN CMPMC NO.**| ||**384/15 OF SUB DIVISIONAL MAGISTRATE, KOZHIKODE**| |**RESPONDENT(S)'**|**ANNEXURES**| |**-----------------------**|| ||**NIL.**| **/ TRUE COPY / P.S. TO JUDGE** ## **PJ** **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.1551 of 2016 ----------------------------------------Dated this the 10[th] day of August, 2016** ## **O R D E R** - 1.The proceeding initiated by the Sub Divisional Magistrate, Kozhikode under Section 107 of the Code of Criminal Procedure against the petitioners 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 petitioners have been directed to appear before the said officer in person at 11 a.m. on 13.1.2016 and to show cause why they should not be required to enter into a bond of Rs.20,000/- each with two sureties for the like sum for keeping peace for a term of one year. - 3.Heard the learned counsel appearing for the petitioners as Crl.M.C.1551/2016 2 well as the learned Public Prosecutor. 4.It is submitted that the 1st petitioner is the wife of the 3rd respondent. The crimes based on which the impugned order has been issued are all registered at the instance of the 1st petitioner against the 3rd respondent and his family members. Annexure-A1 crime is registered at the instance of the 1st petitioner inter alia alleging offence punishable under section 498A of the IPC. Annexure-A2 is the order passed in favour of the petitioner by the learned Magistrate in a proceeding initiated under the Protection of Women from Domestic Violence Act, 2005. Annexure-A3 is the crime registered at the instance of the 5th petitioner under section 294(b), 506(1) of the IPC against the 4th respondent. Annexure-A4 is the crime registered at the instance of the 1st petitioner against the 4th respondent alleging offence punishable inter alia under section 354 of the IPC. Annexure-A8 is another crime registered at the Crl.M.C.1551/2016 3 instance of the 3rd petitioner against the 4th respondent and others inter alia under section 308 of the IPC. According to the learned counsel, the 1st petitioner and her family members have been brutally assaulted by the 4th respondent and his family members and it is unjust for the Sub Divisional Magistrate to call upon the petitioners to execute a bond to keep peace. Though it is stated in the printed order that the Sub Inspector of the Nallalam Police Station has submitted a report and the fact that the petitioners are in the habit of involving themselves in criminal offences, the same is falsified by the materials on record. 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 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.** Crl.M.C.1551/2016 4 **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) 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 petitioners were continuously involving themselves 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 without Crl.M.C.1551/2016 5 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.On perusing Annexure-A9 order, it is evident that the Sub Divisional Magistrate was not justified in calling upon the petitioners to keep peace. Most of the crimes were registered at the instance of the 1st petitioner pursuant to Crl.M.C.1551/2016 6 - acts of matrimonial cruelty. Only certain crime numbers have been mentioned in Annexure-A9 order. Annexure-A9 order does not state in what way or with reference to what matter the petitioners was likely to commit a breach of 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-A9 order does not fulfill the requirement under Section 111 and reveals total non application of mind. - 9.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 Crl.M.C.1551/2016 7 - tranquility. 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. - 10.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-A9 order be quashed. The petition is allowed. All further proceedings against the petitioners in M.C.No.384 of 2015 of the Sub Divisional Magistrate Court, Kozhikode will stand quashed. **Sd/-** **RAJA VIJAYARAGHAVAN.V. JUDGE** ## vps