JOHNEY @ MUTHU v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2023-09-15
Court Decision / Holding: Annexure A1 proceedings are unsustainable. The Criminal Misc. Case is allowed; all further proceedings against the petitioner based on Annexure A1 are quashed.
Final Disposition: The petition allowed; Annexure A1 quashed; no further proceedings based on Annexure A1.

Parties to the Case

Appellants / Petitioners

Johney @ Muthu

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Arun Mathew Vadakkan
• Padayatte Yeldo

Counsels for Respondents

• Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

The petitioner, JOHNEY @ MUTHU, challenges Annexure A1, an order issued by the Sub Divisional Magistrate, Devikulam, directing him to appear and show cause why a cash bond should not be ordered under Sections 107 and 111 CrPC. The notice lacks essential particulars: it does not disclose the substance of the information received or the basis for satisfaction that proceedings under Section 107 CrPC are warranted, nor does it set out the bond amount, term, or the number and class of sureties. The petitioner contends that Annexure A1 is illegal and procedurally defective. The court reviews authorities including Girish P. and others v. State of Kerala (2009 (4) KHC 929) and Bejoy K.V’s case (supra) to emphasize that an order under S.111 CrPC must contain the substance of the information, the purpose, and the particulars, enabling the person to defend himself. The court also cites that the spirit of Section 107 is to preserve peace and public tranquillity, and that past conduct alone cannot sustain initiation unless there is imminent risk of breach of peace, as reiterated in Moidu’s case (supra). In light of these principles, Annexure A1 is found unsustainable, and the Criminal Misc. Case is allowed with quashing of further proceedings based on that order.

Provisions of Law Cited

Section 107 Cr.P.C.Section 111 Cr.P.C.

Legal Doctrines & Maxims

Mandatory disclosure of information in a Section 111 CrPC order to enable defense
Preservation of peace and public tranquillity as the objective of Section 107 Cr.P.C.
Stigma of accusation should be avoided unless supported by information and facts

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Annexure A1 is not in accordance with CrPC because it does not disclose the substance of the information, the basis for the magistrate's satisfaction, or the particulars required under Section 111 CrPC. It argues that the order, by merely listing past crimes, fails to enable proper defense and risks stigmatizing the petitioner without lawful basis. The procedure outlined in S.107/111 CrPC and the authorities cited (Girish P. v. State of Kerala and Bejoy K.V.) require explicit facts and information in the order, which Annexure A1 lacks; thus the order is unsustainable and void.

Contentions of Respondents

The State, through the Public Prosecutor, contends that Annexure A1 complied with CrPC procedures and that the information grounds justify requiring the petitioner to show cause; the arguments emphasize the preventive purpose of Section 107 and the necessity of preserving peace, supported by the cited authorities that stress procedural completeness and non-vindicative action.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Girish P. and others v. State of Kerala and another	2009 (4) KHC 929	Positive	Cited to stress that Section 111 CrPC orders must disclose the substance of information and particulars to enable defense.
Bejoy K.V's case	Not provided in document	Positive	Cited to support the principle that orders under Section 111 CrPC must set forth information, bond terms, and purpose.
Moidu's case (supra)	Not provided in document	Positive	Cited for the proposition that initiation under Section 107 CrPC requires imminent risk to peace, not mere past conduct.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 CRL.MC NO. 404 OF 2022 ``` ## **`ARISING FROM CRIME NO.720 OF 2021 OF ADIMALY POLICE STATION`** ## **`PETITIONER:`** ``` JOHNEY @ MUTHU AGED 67 YEARS TRIBAL SETTLEMENT, 5TH MILE, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685561 BY ADVS. ARUN MATHEW VADAKKAN PADAYATTEE YELDO ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` VIPIN NARAYAN PP ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C No. 404 of 2022 2 ## P.V KUNHIKRISHNAN, J -------------------------------Crl.M.C No.404 of 2022 --------------------------------Dated this the 15[th] September, 2023 ## JUDGMENT The petitioner is challenging Annexure AI order of the Sub Divisional Magistrate, Devikulam. By the said order, the petitioner has been called upon to appear before the Sub Divisional Magistrate on 29.12.2021 and show cause why he should not be ordered to execute a cash bond. The above order is challenged stating that the same is illegal and without following the procedure in Criminal Proceedings Code. 2. Heard Counsel for the petitioner and the learned Public Prosecutor. 3. A perusal of Annexure A1 notice would not showthat it is an order passed in tune with Section 107 r/w Section 111 Cr.PC. In Girish P. and others v. State of Kerala and another (2009 (4) KHC 929) , the mandate of Section 111 and Section 107 Cr.PC are mentioned. It will be better to extract the relevant paragraph, which reads as follows:- Crl.M.C No. 404 of 2022 3 “5. S.107 of Code of Criminal Procedure enables an executive Magistrate on receiving information that a person is likely to commit breach of 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, to require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for such period not exceeding one year as the Magistrate thinks fit. S.111 mandates that when a Magistrate acting under S.107, deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any required, the necessity to setforth the substance of Crl.M.C No. 404 of 2022 4 the information' in the order under S.111 is not an empty formality and is with a purpose. It is to enable the person against whom the order is passed, to appear and show cause before the Magistrate that the allegations are not correct. Unless that information is furnished to the person againstwhom the order is passed, he cannot defend the allegation as against him. 6. Annexure I order issued by the Sub Divisional Magistrate does not disclose the substance of the information received by the Sub Divisional Magistrate on which he was satisfied that proceedings under S.107 is to be initiated. The fact that petitioners are involved in Crime No. 207/2009 by itself is not a ground, to initiate proceedings, under S. 107. Though past conduct may be a guide to initiate proceedings, on that ground alone proceedings cannot be initiated unless as stated by the Full Bench in Moidu's case (supra) there is an imminent Crl.M.C No. 404 of 2022 5 breach of peace warranting initiation of proceedings under S.107 of Code of Criminal Procedure, 1973.” 4. In Bejoy K.V's case (supra) also, this Court considered the same point and relevant paragraph is extracted hereunder:- “17. Therefore, it is mandatory that an order issued under S.111 CrPC by a Sub Divisional Magistrate exercising jurisdiction under S.107 CrPC, to set forth the substance of information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and type of securities, if any are required. The order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under S.107 CrPC for preservation of peace and thatthereupon he has passed such an order. An order issued under S.111 CrPC calling upon the person to show cause against execution of bond without disclosing therein the substance of information Crl.M.C No. 404 of 2022 6 received and upon which satisfaction was arrived at by him, will not sustain in the eye of law. The order must contain all particulars relevant and sufficient to inform him about the accusation against him. This is because, the party calling upon must have to explain the circumstances against him or defend the proceedings and only on sufficient and satisfactory information being furnished, he will be able to answer the same. Therefore, the Sub Divisional Magistrate empowered with the authority to exercise the authority under S.107 CrPC to initiate proceedings must be vigilant and conscious while exercising the power and should bear in mind that the spirit envisaged by the Section is preservation of peace and public tranquillity. The Sub Divisional Magistrate must see that the information supplied to him proposing action, was not one intended with a view to satisfy his personal vendetta. He must bear in mind that with the Crl.M.C No. 404 of 2022 7 exercise of the power a man is called upon to execute a bond undertaking to preserve peace and tranquility for a period specified in the proceedings and therefore, it is likely to cast a stigma upon such a person that he was instrumental in breaching the peace or disturbing the public tranquility. If such a stigma is allowed to be fell upon an innocent person without any basis, that stigma cannot be removed later and the person would not be relegated to his real status of innocence, ultimately when such person was found irresponsible for any such alleged acts.” 5. In the light of the above dictum, I am of the considered opinion that Annexure A1 is not an order in tune with Section 111 Cr.PC and 107 Cr.PC. It is only stated that five crimes are charged by the Chandera Police Station against the counter petitioners. The substances of information received and the details of the case are not narrated in the notice. Crl.M.C No. 404 of 2022 8 Therefore, I am of the considered opinion that Annexure A1 proceedings is unsustainable. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioner based on Annexure A1 are quashed. Sd/P.V KUNHIKRISHNAN, Judge jma Crl.M.C No. 404 of 2022 9 ## **`APPENDIX OF CRL.MC 404/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`CERTIFIED COPY OF THE ORDER DATED 01.12.2021`| ||`NUMBERED AS M.C.NO.68/2021 BY THE SUB`| ||`DIVISIONAL MAGISTRATE'S COURT, DEVIKULAM`| |`Annexure A2`|`TRUE COPY OF THE F.I.R IN CRIME NO.720/2021`| ||`DATED 25.06.2021 OF ADIMALY POLICE STATION`| |`Annexure A3`|`TRUE COPY OF THE COMPLAINT DATED 26.05.2014 BY`| ||`THE PETITIONER BEFORE THE KERALA STATE`| ||`SCHEDULED CASTE SCHEDULED TRIBE COMMISSION`| |`Annexure A4`|`TRUE COPY OF THE LETTER DATED 30.05.2014`| ||`ISSUED BY KERALA STATE SCHEDULED CASTE`| ||`SCHEDULED TRIBE COMMISSION TO DIVISIONAL`| ||`FOREST OFFICER`| |`Annexure A5`|`TRUE COPY OF THE COMPLAINT FILED BY THE`| ||`PETITIONER BEFORE THE CHIEF MINISTER OF KERALA`| ||`DATED 12.09.2021`|