Gigi Mathew Chudukattil v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945** **CRL.MC NO. 1921 OF 2016** ## **AGAINST THE ORDER/JUDGMENT IN MC 24/2016 OF SUB DVL.MAGISTRATE,** ## **ALAPPUZHA** ## **PETITIONER/COUNTER PETITIONER:** GIGI MATHEW CHUDUKATTIL HOUSE, CHEKKIDIKADU P.O., ALAPPUZHA 689 573. BY ADV SRI.UNNI. K.K. (EZHUMATTOOR) ## **RESPONDENTS/COMPLAINANTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 SUB DIVISIONAL MAGISTRATE (REVENUE DIVISIONAL OFFICER) OPP. DISTRICT COURT, ALAPUZHA 686 001. 3 TAHASILDAR KUTTANADU 686 248. ## **OTHER PRESENT:** SRI HRITHWIK C.S,PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.1921 OF 2016 2 ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** CRL.MC No.1921 of 2016 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 3[rd] day of November, 2023 ## **ORDER** This Crl.MC is filed to quash Annexure 26 proceedings of the Sub Divisional Magistrate's Court, Alappuzha in MC.No.24/2016. This Crl.MC is pending before this Court from 2016 onwards. The order was stayed by this Court originally and the stay was in force till 2020. 2. A perusal of Annexure 26 order would not show that it is an order passed after following the procedures contemplated in Sections 107 and 111 and Cr.PC. The counsel relied the judgments of this Court in _**Girish P. and others v. State of Kerala and another (2009 (4) KHC 929)**_ , _**Santhosh M.V and others vs. State of Kerala and others (2014 KHC 522)**_ and also _**Bejoy K.V vs State of Kerala and Another (2015 (5) KHC 507)**_ . 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. A perusal of Annexure 26 notice would not show CRL.MC NO.1921 OF 2016 3 that it is an order passed in tune with Section 107 r/w Section 111 Cr.PC. In _**Girish P**_ ' case (supra), the mandate of Section 111 and Section 107 Cr.PC are mentioned. It will be better to extract the relevant paragraph, which reads as follows:- _“5. S.107 of Code of Criminal Procedure enables an executive Magistrate on receiving information that a person is likely to commit breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, to require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for such period not exceeding one year as the Magistrate thinks fit. S.111 mandates that when a Magistrate acting under S.107, deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any required, the necessity to setforth the substance of the information' in the order under S.111 is not an empty formality and is with a purpose. It is to enable the person against whom the order is passed, to appear and show cause before the Magistrate that the allegations are not correct. Unless that information is furnished to the person against_ CRL.MC NO.1921 OF 2016 4 _whom the order is passed, he cannot defend the allegation as against him._ _6. Annexure I order issued by the Sub Divisional Magistrate does not disclose the substance of the information received by the Sub Divisional Magistrate on which he was satisfied that proceedings under S.107 is to be initiated. The fact that petitioners are involved in Crime No. 207/2009 by itself is not a ground, to initiate proceedings, under S. 107. Though past conduct may be a guide to initiate proceedings, on that ground alone proceedings cannot be initiated unless as stated by the Full Bench in Moidu's case (supra) there is an imminent breach of peace warranting initiation of proceedings under S.107 of Code of Criminal Procedure, 1973.”_ ## 4. In _**Bejoy K.V's**_ case (supra) also, this Court considered the same point and relevant paragraph is extracted hereunder:- _“17. Therefore, it is mandatory that an order issued under S.111 CrPC by a Sub Divisional Magistrate exercising jurisdiction under S.107 CrPC, to set forth the substance of information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and type of securities, if any are required. The order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under S.107 CrPC for preservation of peace and that_ CRL.MC NO.1921 OF 2016 5 _thereupon he has passed such an order. An order issued under S.111 CrPC calling upon the person to show cause against execution of bond without disclosing therein the substance of information received and upon which satisfaction was arrived at by him, will not sustain in the eye of law. The order must contain all particulars relevant and sufficient to inform him about the accusation against him. This is because, the party calling upon must have to explain the circumstances against him or defend the proceedings and only on sufficient and satisfactory information being furnished, he will be able to answer the same. Therefore, the Sub Divisional Magistrate empowered with the authority to exercise the authority under S.107 CrPC to initiate proceedings must be vigilant and conscious while exercising the power and should bear in mind that the spirit envisaged by the Section is preservation of peace and public tranquillity. The Sub Divisional Magistrate must see that the information supplied to him proposing action, was not one intended with a view to satisfy his personal vendetta. He must bear in mind that with the exercise of the power a man is called upon to execute a bond undertaking to preserve peace and tranquility for a period specified in the proceedings and therefore, it is likely to cast a stigma upon such a person that he was instrumental in breaching the peace or disturbing the public tranquility. If such a stigma is allowed to be fell upon an innocent person without any basis, that stigma cannot be removed later and the person would not be relegated to his real status of innocence, ultimately_ CRL.MC NO.1921 OF 2016 6 _when such person was found irresponsible for any such alleged acts.”_ 5. In the light of the above dictum, I am of the considered opinion that Annexure 26 is not an order in tune with Section 111 Cr.PC and 107 Cr.PC. No crime registered is seen mentioned in Annexure A26 against the counter petitioners. The substances of information received and the details of the case are not narrated in the notice. Therefore, I am of the considered opinion that Annexure 26 proceedings is unsustainable. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioner based on Annexure 26 are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng CRL.MC NO.1921 OF 2016 7 ## **APPENDIX OF CRL.MC 1921/2016** PETITIONER EXHIBITS ANNEXURE 1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER TO SHOW THAT THE PETITIONER IS THE SECRETARY OF KONATTUKARY PADASEKHARA SAMITHY - ANNEXURE 2 TRUE COPY OF THE DEALERS LICENSE ISSUED ON 29/6/2012 FOR GRANITE AGGREGATES - ANNEXURE 3 TRUE COPY OF THE LICENSE ISSUED ON 3/5/2013 FOR STOCKING AND SELLING GRANITE AGGREGATES - ANNEXURE 4 TRUE COPY OF THE DEALER'S LICENSE ISSUED ON 12/8/2015 WHICH WAS VALID UP TO 11/5/2020 - ANNEXURE 5 TRUE COPY OF THE DEALER'S LICENSE ISSUED ON 8/4/2014 TO DEAL WITH THE ORDINARY EARTH - ANNEXURE 6 TRUE COPY OF THE PERMISSION TO DEAL WITH ORINARY EARTH ISSUED ON 3/9/2015 WITH VALIDITY UP TO 2/3/2016 - ANNEXURE 7 TRUE COPY OF THE AGREEMENT DATED 23/1/2014 WITH EKK AND COMPANY TO SUPPLY 90,000 CBM ORDINARY EARTH - ANNEXURE 8 TRUE COPY OF THE AGREEMENT DTED 22/1/2016 WITH EKK AND COMPANY - ANNEXURE 9 TRUE COPY OF THE ADDENDUM TO THE WORK ORDER DATED 30/5/2015 - ANNEXURE 10 TRUE COPY OF THE ADDENDUM TO THE WORK ORDER DATED 17/6/2015 - ANNEXURE 11 TRUE COPY OF THE AGREEMENT SIGNED 27/6/2015 WITH COPY OF THE SELECTION NOTICE CRL.MC NO.1921 OF 2016 8 - ANNEXURE 12 TRUE COPY OF THE AGREEMENT SIGNED 23/6/2015 WITH COPY OF THE SELECTION NOTICE - ANNEXURE 13 TRUE COPY OF THE AGREEMENT SIGNED 16/4/2015 WITH SELECTION NOTICE - ANNEXURE 14 TRUE COPY OF THE NOTICE ISSUED BY THE VILLAGE OFFICER DATED 22/10/2007 - ANNEXURE 15 TRUE COPY OF THE ORDER OF THE TAHASILDAR DATED 8/2/2008 - ANNEXURE 16 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WRIT PETITION NO.8040/2008 - ANNEXURE 17 TRUE COPY OF THE JUDGMENT DATED 28/7/2008 IN WRIT PETITION NO.20815/2008 - ANNEXURE 18 TRUE COPY OF THE NOTICE DATED 5/12/2008 FOR HEARING ON 24/12/2008 ISSUED BY THE RDO - ANNEXURE 19 TRUE COPY OF THE CERTIFICATE DATED 18/2/2011 ISSUED BY THE RDO - ANNEXURE 20 TRUE COPY OF THE LETTER ISSUED BY THE RDO TO THE PANCHAYATH - ANNEXURE 21 TRUE COPY OF THE DATA BANK SHOWING THE NATURE OF THE PROPERTY OWNED BY THE PETITIONER - ANNEXURE 22 COPY OF THE PROCEEDINGS OF THE RDO DATED 7/3/2012 - ANNEXURE 23 TRUE COPY OF THE CERTIFICATES SHOWING THE SEIZURE ON 18/4/2012 - ANNEXURE 24 TRUE COPY OF THE ORDER DATED 25/1/2016 OF THE RDO - ANNEXURE 25 TRUE COPY OF THE INTERIM ORDERR DATED 15/2/2016 IN WRIT PETITION NO.5630/2016 CRL.MC NO.1921 OF 2016 **==> picture [8 x 9] intentionally omitted <==** ANNEXURE 26 TRUE COPY OF THE RPOCEEDINGS DATED 8/3/2016 SERVED TO THE PETITIONER ON 8/2/2016