Jefrin v. Sub Inspector of Police, Puthenvelikkara & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** **Crl.MC.No.1294 OF 2020(B)** **AGAINST THE ORDER/JUDGMENT IN MC 391/2019 OF SUB DIVISIONAL MAGISTRATE'S COURT,FORT KOCHI** **CRIME NO.202/2019 OF Puthenvelikkara Police Station , Ernakulam** ## **PETITIONER/COUNTER PETITIONER:** **JEFRIN AGED 25 YEARS S/O. JOSE, VAZHAPILLY HOUSE, KURISINGAL, PUTHENVELIKARA, ERNAKULAM - 683 594.** **BY ADV. SRI.V.A.VINOD** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 THE SUB INSPECTOR OF POLICE PUTHENVELIKARA POLICE STATION, ERNAKULAM DISTRICT - 683 594.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **OTHER PRESENT:** **SMT. V. SREEJA, PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC 1294/2020 -2- ## **O R D E R** **Dated this the 13th day of March 2020** Petitioner is facing proceedings under Section 107 Cr.PC in MC No.391/2019 on the files of the Court of Sub Divisional Magistrate, Fort Kochi. A preliminary order has been passed by the Sub Divisional Magistrate (SDM) on 16.12.2019 at Annexure-I, wherein the petitioner has been directed to attend the Court of SDM on 31.12.2019 at 11 a.m. to show cause why he should not be ordered to execute a cash bond for Rs.50,000/with two solvent sureties for the like sum amount for keeping peace for a period of one year under Section 107 Cr.PC. The petitioner contends that although it is mentioned that the proceedings were initiated on reliable information placed before the SDM by the Sub Inspector of Police, Puthenvelikkara, the details of what exactly is the breach of peace caused by the petitioner is not mentioned anywhere in the order. Although the impugned order contains a paragraph with the heading 'substance of information', it does not Crl.MC 1294/2020 -3- state the details of what exactly was done, apart from mentioning two crime numbers in which the petitioner was involved in the years 2014 and 2019. A reading of Annexure-I order would clearly indicate that there was no application of mind and therefore, it is prayed that the proceedings before the SDM in MC No.391/2019 may be quashed. 2. I heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 3. The primary requirement of Section 111 Cr.PC that when a Magistrate acting under Section 107 Cr.PC deems it necessary to require any person to show cause under such Section, he shall make an order in writing, setting forth the substance of the information received, the amount of bond to be executed, the term for which it is in force and the number, character and the class of sureties, (if any) required. A perusal of Annexure-I order under Section 111 Cr.PC indicates that it is a printed form with left out blank places to be filled up indicating that the same form is being used for all the cases taken up for consideration by the SDM by only filling the blanks with details of the crime Crl.MC 1294/2020 -4- numbers, the name of the Police Station, the time when the counter petitioner is expected to come etc. The rest of the format goes without any change, as predetermined by the SDM. The SDM has not indicated the exact contends or the substance of the information that he has received from the Sub Inspector of Police, Puthenvelikkara. All that he has stated is thus: “The Sub Inspector of Police, Puthenvelikkara has reported that the Counter Petitioner above is endangering the peaceful and tranquil atmosphere of ................ and nearby localities.” The blank space in between has not been filled. 4. A Constitution Bench of the Honourable Supreme Court has in Madhu Limaye v. Sub Divisional Magistrate, Monghyr [AIR 1971 SC 2486] detailed with the safeguards to be provided before initiating proceedings under the above provision and it is specifically stated that the Magistrate is expected to form an opinion and conclude that there is sufficient grounds for proceeding against a person who is likely to commit breach of peace or disturb the public tranquillity. The provision provides for preventive justice. What exactly is the Crl.MC 1294/2020 -5- act done by the petitioner which gives room for apprehension in the mind of the Station House Officer or the Magistrate that he would commit breach of peace is not detailed in the impugned order. Mere extraction of the information cited that the crimes against the counter petitioner, and directing him to execute bond alone without correlating those information to the existence of imminent apprehension of breach of peace or tranquillity to be committed or anticipated from the counter petitioner is not stated in the order. [See Santhosh v. State of Kerala : 2014 (3) KLT 837 ]. 5. In Rakesh Singh v. State of U.P. [2010 Cri.L.J. 2267] , the High Court of Allahabad had observed that the impugned notice which has been issued on a typed format in a cyclostyled manner filling only the name and date and police station in the gaps provided in the format would indicate that the Magistrate did not set forth the substance of the information received in the impugned notice, which is mandatory in nature and non-compliance of the same will vitiate the entire proceedings. In the instant case, though there is underlined heading to a paragraph that Crl.MC 1294/2020 -6- it is substance of information, what is provided is only that the Sub Inspector of Police, Puthenvelikkara has reported that the counter petitioner is endangering peaceful and tranquil atmosphere of some places, which is not even specified in the gaps provided in the format. The basic object of the preliminary order under Section 111 Cr.PC is to give the person proceeded against an opportunity to meet the allegations made against him as well as the nature of the order proposed. Mere filling the form or mere reproducing the words in Form-14 of the notice to be issued without specifying the nature of information, reason for forming the opinion etc., and just extracting the crime numbers with the offences alleged in those crimes alone is not sufficient compliance of passing order under Section 111 Cr.PC. Violation to pass such an order will vitiate the entire proceedings. The order passed by the SDM in the instant case is an exact replica of the order passed by the SDM in the decision in Santhosh (supra). A reading of the Section would indicate that mere existence of certain crimes against the counter petitioner would not suffice an action under Section Crl.MC 1294/2020 -7- 107 Cr.PC. If that is so, every person involved in crimes will have to be proceeded against under Section 107 Cr.PC, which is not the intention of the statute. Hence, I find that the petition will have to be allowed. In the result, the Criminal MC is allowed and the proceedings as against the petitioner in MC No.391/2019 on the files of the Sub Divisional Magistrate's Court, Fort Kochi as per Annexure-I shall stand quashed. It is further made clear that quashing of the proceedings is not an embargo for the SDM to initiate fresh proceedings against the petitioner, if there is satisfactory situation which still prevails so as to initiate proceedings against the petitioner under Section 107 Cr.PC, after complying with all the procedures and guidelines provided by this Court as also in the precedents referred to above. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** jg Crl.MC 1294/2020 -8- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **COPY OF THE ORDER DATED 16.12.2019 IN MC NO.391/2019 OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI.**