Ismayil v. Sub Inspector of Police, Nadapuram Police Station, Kozhikode District; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938** ## **Crl.MC.No. 2811 of 2016 ()** **--------------------------MC.NO. 193/2016 OF SUB DIVISIONAL MAGISTRATE COURT,KOZHIKODE CRIME NO. 313/2016 OF NADAPURAM POLICE STATION , KOZHIKODE DISTRICT** **----------------------** ## **PETITIONER :** **---------------------** **ISMAYIL, S/O. CHEKU HAJI, PAROLLATHIL HOUSE, MUDAVANTHERI P.O., THUNERY VILLAGE, VADAKARA TALUK, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.SUNNY MATHEW** **RESPONDENT(S)/STATE :** **--------------------------------------** **1. THE SUB INSPECTOR OF POLICE, NADAPURAM POLICE STATION, KOZHIKODE DISTRICT-673 001.** ## **2. STATE OF KERALA,** - **(RESPONDENTS 1 & 2), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 2811 of 2016 ()** **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ---------------------------------------------** **ANNEX A1 TRUE COPY OF THE PROCEEDINGS IN M.C.NO. 193/2016 ON THE FILE OF THE SUB DIVISIONAL MAGISTRATE, KOZHIKODE DATED 26-4-2016. ANNEX A2 TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER IN M.C.NO. 193/2016 DATED 4-5-2016.** **RESPONDENT(S)' ANNEXURES: NIL ----------------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.2811 of 2016 ----------------------------------------Dated this the 9[th] day of August, 2016** ## **O R D E R** - 1.The petitioner is proceeded under Section 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the Sub Divisional Magistrate, Kozhikode on a report filed by the Sub Inspector of Police, Nadapuram Police Station. By Annexure-A1 order, the petitioner has been called upon to appear before the said officer in person at 3.00 p.m. on 2.5.2016 and to show cause why he should not be required to enter into a bond of Rs.25,000/- each with two sureties for the like amount for keeping peace for a term of one year. - 2.Heard the learned counsel appearing for the petitioner as - well as the learned Public Prosecutor. - 3.It is submitted by the learned counsel that the Crl.M.C.2811/2016 2 proceedings have been initiated on the basis of Crime Nos.365/2014, 528/2014, 564/2014 and 255/2016 of the Nadapuram Police Station. According to the learned counsel, the order is also silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioner is likely to disturb peace and tranquility in a particular locality and in order to prevent the same, it is necessary to take preventive action against him. 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 order impugned 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** [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) Crl.M.C.2811/2016 3 KLD 889]. - 4.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Nadapuram Police Station to the effect that the petitioner is in the habit of indulging in criminal offences causing breach of peace and public tranquility in the area that preventive action was initiated. - 5.I have perused the materials on record as well. 6.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 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 Crl.M.C.2811/2016 4 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. ## 7.In **Madhu Limaye and Another v. SDM, Monghyr** [AIR 1971 SC 2486] 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_ Crl.M.C.2811/2016 5 _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 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."_ 8.On perusing Annexure-A1 order, it is evident that the Sub Divisional Magistrate has disregarded the statutory Crl.M.C.2811/2016 6 mandate and has invoked powers vested on him in a callous manner. The mere fact that the petitioner is involved in certain crimes registered by the police cannot have been taken as the basis to issue a preventive order against the petitioner herein. (see **Santhosh M.V. and others v. State of Kerala** [2014 (3) KLT 837; Girish P and Others v. State of Kerala [2009 (4) KHC 929]). The reasons which led the Sub Divisional Magistrate to initiate proceeding is 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 parties, to show cause why he should not enter into recognisances, and on his failure, to make an order under the section. (see **Moidu v. State of Kerala** [1982 KLT 578]. It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-A1 order does not state in what way or with reference to what matter the petitioner was likely to commit a breach or peace. There was no Crl.M.C.2811/2016 7 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 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 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.For the reasons discussed above, I am of the view that Crl.M.C.2811/2016 8 the impugned order fails to pass muster and has to be quashed in exercise of the powers of this Court under section 482 of the Code of Criminal Procedure. This petition is allowed. All further proceedings against the petitioner herein in M.C.No.193 of 2016 of the Sub Divisional Magistrate Court, Kozhikode, will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps