Harris v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV ``` ``` THURSDAY,THE10[TH]DAYOFAUGUST2023/19THSRAVANA,1945 ``` ``` CRL.MCNO.5720OF2023 M.C.NO.198/2023ONTHEFILESOFTHESUBDIVISIONAL MAGISTRATE,FORTKOCHI ``` ``` PETITIONER/COUNTERPETITIONER: ``` ``` HARRIS AGED50YEARS S/O.MUHAMMED,MANNARKKATHOUSE, KUNJUNNIKKARAP.O,KADUNGALLOORVILLAGE, – ALUVA,ERNAKULAM,PIN683101 ``` ``` BYADVS. M.A.AHAMMADSAHEER E.A.HARIS MUHAMMEDYASIL JACOBMATHEW ``` ## **`RESPONDENTS/STATE AND COMPLAINANT :`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM, - PIN682031 2STATIONHOUSEOFFICER ALUVAEASTPOLICESTATION, - ERNAKULAMRURAL,KERALA,PIN683101 SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 10.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.5720 of 2023 2 ## **ORDER** This petition is filed by the petitioner challenging the order dated 21.06.2023 passed by the Sub Divisional Magistrate, Fort Kochi, invoking the powers under Section 111 of the Code of Criminal Procedure (“the Code” for the sake of brevity). 2. As per the impugned order issued under Section 107 of the Cr.P.C., the Sub Divisional Magistrate has called upon the petitioner to attend the Court of the Sub Divisional Magistrate on 04.07.2023 at 11 am to show cause why he shall not be ordered to execute a cash bond for Rs 1,00,000/- (Rupees One Lakh Only) with two solvent sureties of like sum for keeping the peace for a period of one year under Section 107 of the CrPC. 3. Sri. M.A. Ahammad Saheer, the learned counsel appearing for the petitioner, submitted that in the order impugned the Sub Divisional Magistrate has referred to six crimes. According to the learned counsel, all that is mentioned in the order is that the petitioner has been involved in Crime Nos.439/2007, 2202/2007, Crl.M.C No.5720 of 2023 3 2070/2014, 240/2023, 881/2013 and 481/2009 of the Aluva East Police Station and other stations. The crimes registered in the “other stations” is not mentioned in the order. According to the learned counsel, there is absolutely no material before the learned magistrate to show that there was an imminent danger or that there was a likelihood of disturbance of peace and tranquility in the area. It is urged by the learned counsel that before proceeding to invoke the powers under Section 107 of the Code, the learned Magistrate was bound to consider the materials placed before him and to satisfy himself that there are sufficient grounds for invoking the provision and to call up the individual to execute a bond as contemplated therein for a fixed period. Finally, it was contended that the preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance is placed on the Full Bench decision of this Court in **Moidu v. State of Kerala[1]** and the decision of the learned Single Judges in **Peethambaran v. State of Kerala[2]** , **Santhosh M.V. and Others v. State of** > 2 1980 KLT 876 > 1 1982 KHC 139 Crl.M.C No.5720 of 2023 4 ## **Kerala[3]** , and **Bejoy K.V. v. State of Kerala[4]** . 4. The learned Public prosecutor, on the other hand, submitted that based on the report received from the Sub Inspector of Police, the Sub Divisional Magistrate was convinced and satisfied that the petitioner herein posed a real threat to public peace and tranquility. Referring to Section 107 of the Code and to its objective, it is submitted that the provision is not intended as a punitive action but a preventive one, and according to him, the learned Magistrate was well justified in acting on such information. 5. I have considered the submissions advanced and have perused the records. 6. As is evident from the order, it is mentioned that the Sub Inspector of Police, Aluva East Police Station, has reported that the petitioner is involved in Crime Nos.439/2007, 2202/2007, 2070/2014, 240/2023, 881/2013 and 481/2009 of the Aluva East Police Station. The nature of the crime, the offense involved, and how the petitioner is likely to endanger the peaceful and tranquil atmosphere of the area is also not mentioned in the order. What > 3 2014 (2) KLD 519 > 4 2015 (2) KLD 889 Crl.M.C No.5720 of 2023 5 persuaded the learned Sub Divisional Magistrate to pass the impugned order when almost all of the crimes were registered decades back is not borne out from the order. 7. It would be relevant to have a look at Section 107 of the Code. “107. Security for keeping the peace in other cases. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the 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, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.” 8. Under Section 107 of the Code, whenever a Magistrate is informed that any person is likely to commit a breach of peace, he may require such person to show cause why he should not be ordered to execute a bond with or without 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 Crl.M.C No.5720 of 2023 6 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 Section 111, must record the grounds, which, in his opinion, is sufficient for proceeding further. 9. In other words, the provision does not contemplate that the learned Magistrate shall draw up the proceedings automatically whenever information of the kind mentioned in the section is received by the Magistrate. Any action can be initiated only if the Magistrate is satisfied and if he is of the opinion that there are sufficient grounds for proceeding. The Magistrate has to exercise his discretion with reference to the credibility and sufficiency of the information received by him. The prior formation of the opinion by the Magistrate under Section 107 is that which gives him jurisdiction to proceed further under Section 111 of the Code. Crl.M.C No.5720 of 2023 7 Though the initiation of the proceedings depends on the Magistrate's subjective satisfaction and in his discretion, there should be cogent materials before him on which a reasonable opinion for initiating the action could be formed. (See **Peethambaran** ) 10. In **Madhu Limaye and another v. SDM, Monghyr[5]** , the Apex Court, in para 36 of the judgment, had cautioned the Executive Magistrate exercising powers under Section 107 in the following manner:- "We have seen the provisions of Sec. 107. That section says that action is to be taken in the manner here-in-after provided, and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved, and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of general public." ## It was further observed in Para 37 as under:- "Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquility at his hands. Although the section speaks of the ''substance' of the information, it does not mean the order should not be full. It > 5 AIR 1971 SC 2486 Crl.M.C No.5720 of 2023 8 may not repeat the information but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word ''substance' means the essence of the most important parts of the information." 11. In the absence of any material rendering a breach of peace probable, a Magistrate is not justified in calling upon parties to show cause why he should not enter into recognizances and on his failure to make an order under the section (see **Moidu v. State of Kerala)[6]** . It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. The impugned orders do not state in what way or with reference to what matter the petitioner 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 a breach of peace. Annexure-A1 order does not fulfill the requirement under Section 111 and discloses total non-application of mind. 12. The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not 6 1982 KLT 578 Crl.M.C No.5720 of 2023 9 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 preventing the commission of offenses involving a breach of peace or disturbance of public 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 offense, it is essential that the power should be exercised strictly in accordance with the law. 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 the Annexure-A1 order shall stand quashed. The petition is allowed. All further proceedings against the petitioner in M.C.No.198/2023 on the file of the Sub Divisional Magistrate Court, Fort Kochi, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.5720 of 2023 10 ## **`APPENDIX OF CRL.MC 5720/2023`** ``` PETITIONERANNEXURES: ``` ``` AnnexureA1 ``` ``` TRUECOPYOFTHEORDERDATED21.06.2023 INM.C.NO.198/2023ISSUEDBYTHESUB DIVISIONALMAGISTRATEFORT-KOCHI ``` ``` AnnexureA2 ``` ``` TRUECOPYOFTHEFIRDATED07.03.2023IN CRIMENO.240/2023OFALUVAPOLICESTATION ```