Jasu Bukhari & MujeeB Bukhari v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** **Crl.MC.No. 5398 of 2018** **MC NO.153/2017 ON THE FILES OF THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI** ## **PETITIONER/COUNTER PETITIONER:** **JASU BUKHARI, AGED 42 YEARS, S/O.BUKHARI,MANGALASSERY PARAMBU HOUSE, NETTOOR P.O., ERNAKULAM, PIN-682 040.** **BY ADVS. SRI.MANU TOM CHERUVALLY SRI. JITHIN K.R. SRI.BALU TOM CHERUVALLY SRI.JERRY VARGHESE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.K.SHEEBA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH Crl.MC.5449/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MCs.5398 & 5449/18** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** **Crl.MC.No. 5449 of 2018** **MC NO.154/2017 ON THE FILES OF THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI** **CRIME NO. 0837/2015 OF PANANGAD POLICE STATION, ERNAKULAM** ## **PETITIONER/COUNTER PETITIONER:** **MUJEEB BUKHARI, AGED 40 YEARS, S/O.BUKHARI, MANGALASSERY PARAMBU HOUSE, NETTOOR P O, ERNAKULAM, PIN 682040.** **BY ADVS.SRI.MANU TOM CHERUVALLY SRI. JITHIN K.R. SRI.BALU TOM CHERUVALLY SRI.JERRY VARGHESE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.K.SHEEBA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH Crl.MC.5398/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MCs.5398 & 5449/18** **3** ## **ORDER** In these petitions filed under Section 482 of the Code of Criminal Procedure, the petitioners challenge Annexure-F order of the Sub Divisional Magistrate, Fort Kochi. By the said order, the petitioners, who are brothers, have been called upon to appear before the said officer in person at 11.30 a.m. on 24.07.2018 and to show cause why they should not be ordered to execute a cash bond of Rs.50,000/- with two solvent sureties for the like sum amount for keeping peace for a period of one year under Section 107 of the Cr.P.C. 2. The learned counsel appearing for the petitioners would assail the orders on various grounds. According to the learned counsel, Annexure-F notices display total non-application of mind as it is mentioned that the petitioners are involved in three crimes registered at the Panangad Police Station. Identical orders have been issued to both the petitioners on 13[th] of July, 2018 mentioning the very same crimes. It is pointed out that those crimes are registered at the instance of the neighbour of the petitioners in connection with a property dispute, which litigation is pending before the Civil Court. He would also refer to Annexure-E order passed by this Court in W.P.(C) **Crl.MCs.5398 & 5449/18** **4** No.34254 of 2016, in which case, the petitioners had approached this Court complaining of police harassment. This Court had relegated the parties to settle their disputes in a Civil Court. It is urged that, in the fact situation, the materials before the learned Magistrate were thoroughly inadequate to arrive at the requisite satisfaction. There was no indication of the likelihood of any breach of peace or disturbance of public tranquillity, as it was a dispute between neighbours. Finally, it is contended that the preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance were placed on the Full Bench decision of this Court in **Moidu v. State of Kerala** [1982 KLT 578] and the decision of the learned Single Judges in **Peethambaran v. State of Kerala** [1980 KLT 876], **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]. 3. Heard the learned Public Prosecutor as well and I have perused the materials on record. 4. On perusing Annexure-F order, it is evident that the Sub Divisional Magistrate has disregarded the statutory mandate and has invoked powers vested on him in a callous manner. The mere fact that the petitioners herein are involved in criminal acts could not have been taken as the basis to issue a preventive order against them. The **Crl.MCs.5398 & 5449/18** **5** reasons which persuaded the Sub Divisional Magistrate to initiate proceeding is not disclosed in the orders. 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-F order does not state in what way or with reference to what matter, the petitioners wre likely to commit breach or 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-F order in both the petitions does not fulfil the requirement under Section 111 and reveals total non application of mind. 5. As such, in view of such blatant abuse of the powers under Sections 107 and 111 of the 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-F order be quashed. 6. In the result, these petitions are allowed. All further proceedings pursuant thereto against the petitioners now pending as **Crl.MCs.5398 & 5449/18** **6** M.C.Nos.153 of 2017 and 154 of 2017 on the file of the Sub Divisional Magistrate Court, Fort Kochi, will stand quashed. **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV //TRUE COPY// P.A. TO JUDGE **Crl.MCs.5398 & 5449/18** **7** ## **APPENDIX OF Crl.MC 5398/2018** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **TRUE COPY OF THE PRELIMINARY INJUNCTION ORDER DATED 7/9/2015 IN ORIGINAL SUIT NO.1116/15 PASSED BY THE MUNSIFF COURT, ERNAKULAM.** **ANNEXURE B TRUE COPY OF THE AD-INTERIM INJUNCTION ORDER DATED 25/5/2018 IN OS.536/18.** **ANNEXURE C TRUE COPY OF THE F.I.R IN CRIME NO.837/15 OF PANANGAD POLICE STATION** **ANNEXURE D TRUE COPY OF THE FIR IN CRIME NO.439/16 OF PANANGAD POLICE STATION, REGISTERED ON 8/4/2016.** **ANNEXURE E TRUE COPY OF THE JUDGMENT DATED 9/4/2018 IN WPC NO.34254/16.** **ANNEXURE F CERTIFIED COPY OF ORDER DATED 13/7/18 UNDER SEC.111 CRPC R/W SEC.107 CR.P.C. IN M.C NO.153/17 PASSED BY THE LEARNED SUB DIVISIONAL MAGISTRATE, FORT KOCHI.** **ANNEXURE G TRUE COPY OF THE DRIVING LICENSE OF THE PETITIONER** **ANNEXURE H TRUE COPY OF THE F.I.R IN CRIME NO.1038/16 OF PANANGAD POLICE STATION.** **ANNEXURE I TRUE COPY OF THE F.I.R IN CRIME NO.695/18 OF PANANGAD POLICE STATION.** **RESPONDENT'S/S EXHIBITS:** **NIL** **Crl.MCs.5398 & 5449/18** **8** ## **APPENDIX OF Crl.MC 5449/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A TRUE COPY OF THE PRELIMINARY INJUNCTION ORDER DATED 07/09/2015 IN ORIGINAL SUIT NO. 1116/15 PASSED BY THE MUNSIFF COURT, ERNAKULAM. ANNEXURE-B TRUE COPY OF THE AD-INTERIM INJUNCTION ORDER DATED 25/05/2018 IN OS NO. 536/18. ANNEXURE-C TRUE COPY OF THE FIR IN CRIME NO.837/15 OF PANANGAD POLICE STATION. ANNEXURE-D TRUE COPY OF THE FIR IN CRIME NO.439/16 OF PANANGAD POLICE STATION, REGISTERED ON 08/04/2016. ANNEXURE-E TRUE COPY OF THE JUDGMENT DATED 09/04/2018 IN WP(C) NO.34254/16. ANNEXURE--F CERTIFIED COPY OF ORDER DATED 13/07/18 UNDER SEC.111 CRPC R/W SEC.107 CR.P.C. IN M.C. NO.154/17 PASSED BY THE LEARNED SUB DIVISIONAL MAGISTRATE, FORT KOCHI. ANNEXURE-G TRUE COPY OF THE FIR IN CRIME NO.1038/16 OF PANANGAD POLICE STATION. ANNEXURE-H TRUE COPY OF THE FIR IN CRIME NO.695/16 OF PANANGAD POLICE STATION. ANNEXURE-I TRUE COPY OF THE ORDER IN CRL. MA 8458/18 IN CRL.M.C. 5398/18, PASSED BY THE HONOURABLE COURT.** ## **RESPONDENT'S/S EXHIBITS:** **NIL**