Jayan Chepalakadu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939** ## **Crl.MC.No. 5823 of 2017 ()** **--------------------------IN MC 130/2017 of SUB DVL.MAGISTRATE,THRISUR DATED 30.06.2017 -----------------------------------------------------------** **PETITIONER(S)/ACCUSED : -----------------------------------------** **JAYAN CHEPALAKADU AGED 45 YEARS, S/O.JOHN, KARAVATTU UPPAZHAKODE HOUSE, ENKAKADU, WADAKKANCHERRY.** **BY ADVS.SRI.K.B.GANGESH SMT.ATHIRA A.MENON** **RESPONDENT(S)/STATE :** **--------------------------------------** ## **1. STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 (THROUGH S.I. OF POLICE, WADAKKANCHERRY POLICE STATION, THRISSUR).** **2. SUB DIVISIONAL MAGISTRATE THRISSUR -680 003.** **R BY PUBLIC SRI.C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** **Crl.MC.No. 5823 of 2017 ()** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **--------------------------------------** **ANNEXURE A1 TRUE COPY OF PRELIMINARY ORDER DATED 30.6.2017 PASSED BY THE 2ND RESPONDENT IN M.C.NO.130/2017** **ANNEXURE A2 TRUE COPY OF FIR IN CRIME NO. 1684/2016 OF WADAKANCHERY POLICE STATION DATED 26.12.2016** **RESPONDENT(S)' EXHIBITS NIL** **------------------------------------------** **/TRUE COPY/ PA TO JUDGE** **VS** ## **A.HARIPRASAD, J. ============================= Crl.M.C. No.5823 of 2017** ## **============================ Dated this the 14[th] day of September, 2017** ## **ORDER** Heard the learned counsel for the petitioner and the learned Public Prosecutor. 2. Annexure AI order passed by the Sub Divisional Magistrate, Thrissur in M.C.No.130/2017 under Section 107 Cr.P.C. is under challenge in these proceedings. Petitioner was an accused in Crime Nos.307/2008 and 661/2008 registered by Wadakanchery police. It is the submission of the petitioner that he was tried in both these cases and was acquitted. Another crime bearing No.1451/2016 registered under Sections 143, 147, 452, 323, 353 and 506 read with 149 IPC is still pending against him. It is the submission of the learned counsel that the petitioner has been enlarged on bail in the above crime. 3. The police officer concerned filed Annexure AII petition before the Sub Divisional Magistrate, Thrissur _Crl.M.C. No.5823 of 2017 -2-_ alleging that the petitioner is in the habit of creating problems in the area and he causes breach of peace and public tranquility in and around Wadakanchery. The details of the crimes in which he was involved have been narrated in Annexure AII. Based on Annexure A2 and on the examination of the Sub Inspector of Police, Wadakanchery, Annexure AI order was passed by the Sub Divisional Magistrate, Thrissur. 4. The learned counsel for the petitioner contended that Annexure AI order falls much below the standard required under law. Section 107 Cr.P.C. reads thus :- _**“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 tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereafter provided, require such person_ _Crl.M.C. No.5823 of 2017_ _-3-_ _to show cause why he should not be ordered to execute a bond [with or without sureties,] 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 tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.”_ 5. It is settled law that unless substance of information is stated in the order passed under Section 107 Cr.P.C., the order should be treated as bad in law. This principle has been discussed by a Full Bench of this Court in **Moidu v. State of Kerala** [1982 KLT 578]. The following quotation is relevant. _“4. To take proceedings against a person under S.107 of the Code there must be: (1) receipt of information by the Magistrate (2) such information must be that a person is likely_ _Crl.M.C. No.5823 of 2017_ _-4-_ _to commit breach of the peace or disturb the public tranquility and (3) on such information the Magistrate must be able to form an opinion that there are sufficient grounds for proceeding. There is no controversy with regard to the first and the third elements. But it is really the scope of the second, namely, what should be the nature of the information concerning the likelihood of commission of the breach of the peace or disturbance of the public tranquility that calls for consideration. No hard and fast rule can be laid down as regards the nature and source of the information. As observed in C.S. Reddy v. State of A.P. 1973 (79) Crl.L.J. 1713 it may be that the past conduct and wrongful act is the safe guideline. It is not the likelihood of a breach of the peace at any point of time that is relevant. The breach of the peace must be imminent to justify action under S.107. The information about the past conduct or wrongful acts of the past must not be remote or isolated but must be relatable to the present apprehension in the sense that it must have some relevance to the_ _Crl.M.C. No.5823 of 2017_ _-5-_ _apprehension of likelihood of breach of the peace or disturbance of public tranquility.”_ Thereafter, various decisions of this Court touching this point has come into existence. The learned Single Judge in **Girish P and others v. State of Kerala and Another** [2009 (4) KHC 929] has categorically found that unless the substance of information is stated in the impugned order passed under Section 107 Cr.P.C., the order cannot be sustained. This view was affirmed in **Ahammad Kabeer v. State of Kerala and Another** [2014 KHC 186] and in **Santhosh M.V. And Others v. State of Kerala and Others** [2014 KHC 522]. The learned counsel for the petitioner contended that none of the details mentioned in Annexure AII complaint is reflected in Annexure AI order. It simply says that from the information received through Annexure AII and the oral evidence of the Sub Inspector, the Sub Divisional Magistrate was of the opinion that the petitioner was likely to commit a breach of peace and disturb public tranquility. The cryptic order passed by the _Crl.M.C. No.5823 of 2017_ _-6-_ Sub Divisional Magistrate does not show that the actual information received by him on which he made up his mind to proceed against the accused under Section 107 Cr.P.C. Therefore the impugned order falls short of the legal standard required in this matter. Therefore Annexure AI order is hereby quashed. **A.HARIPRASAD, JUDGE** VS