K. Pradeepan and Others v. State of Kerala and The Sub Divisional Magistrate, Thalassery

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938** **Crl.MC.No. 6592 of 2016 () ---------------------------** **MC 191/2016 of SUB DVL.MAGISTRATE, THALASSERY** **Crl.MC 2843/2016 of HIGH COURT OF KERALA DATED 10-08-2016 CRIME NO. 693/2016 OF THALIPARAMBA POLICE STATION, KANNUR** **PETITIONER(S):** **-------------** ## **1. K.PRADEEPAN** **S/O PAYATHIL, AGED 42, KALLEN HOUSE, KOOTHATTU, PATTUVAM KANNUR.** ## **2. U.P.VENU** - **S/O KUNHIRAMAN, AGED 53, ULLIVALAPPIL HOUSE, PATTUVUM AMSOM, KANNUR.** ## **3. SAJIL K** - **S/O DAMDHARAN, AGED 28, KANDATHIL HOSUE, ARAMAVAYAL, PATTUVUM AMSOM, KANNUR.** **4. SUKUMARAN C** - **S/O RAGHAVAN, AGED 65, CHERUKUNIYAN HOUSE, KOOTHATTU, PATTUVUM, KANNUR.** **5. NIJESH P.P.** - **S/O NEELAKANADAN, AGED 37, PAZHAYAPURAYIL HOUSE, PATTUVUM, KANNUR.** **6. O.RAGHAVAN** - **S/O DAMODARAN, AGED 70, OLAMURIAN HOUSE, KOOTHATTU, PATTUVUM, KANNUR.** **7. U.V.DINEESHAN** - **S/O KUNHIRAMAN, AGED 43, ULLIVALAPPIL HOUSE, MULLOOL, PATTUVUM, KANNUR.** **8. SHAJI** - **S/O KUNHIRAMAN, AGED 36, PERIYAD HOUSE, OZHAKROM, MORAZHA.** - ***9 EDACHERIYAN NANU, S/O.POOTHIRI** **EDACHERIYAN HOUSE, MORAZHA, KANNUR DISTRICT.** ## **BY ADVS.SRI.K.S.PRAVEEN** **SMT.P.SHEEBA** ***ADDL.R9 IS IMPLEADED AS PER ORDER DATED 20.10.2016 IN CRL.M.A.10754/16 IN CR.M.C.6592/16.** ## **Crl.MC.No. 6592 of 2016 ()** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA THROUGH STATION HOUSE OFFICER, TALIPARAMBA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE SUB DIVISIONAL MAGISTRATE THALASSERY.** **R BY PUBLIC PROSECUTOR SRI.M.R.DHANIL** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0311-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 6592 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE 1: COPY OF THE ORDER IN M.C.NO.191/2016 DATED 5.4.2016 ISSUED BY THE SUB DIVISIONAL MAGISTRATE THALASSERY.** **ANNEXURE 2: COPY OF THIS ORDER IN CRL.M.C.2843/2016 DATED 10.8.2016 PASSED BY THIS HON'BLE COURT.** **RESPONDENTS' ANNEXURES: NIL** **-----------------------** **TRUE COPY** **P.A. TO JUDGE.** **kp** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6592 of 2016 ----------------------------------------Dated this the 3[rd] day of November, 2016** ## **O R D E R** - 1.In this petition filed under section 482 of the Code of Criminal Procedure, the petitioners challenge Annexure-1 order of the Sub Divisional Magistrate, Thalassery. By Annexure-1 order, the petitioners have been called upon to appear before the said officer in person at 11.00 a.m. on 8.4.2016 and to show cause why they should not be required to enter into a bond of Rs.50,000/- each with two solvent sureties for the like amount for keeping peace for a term of one year. - 2.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. - 3.The learned counsel would assail the order on various grounds. It is submitted that the substance of accusation has not been stated in Annexure-1 order. Though it is Crl.M.C.6592/2016 2 stated in the order that Sub Inspector of the Taliparamba Police Station has submitted the copy of FIR and other details of Crime No.1879 of 2015 for the offences punishable under sections 143, 147, 323, 506(i) read with 149 of the IPC & sections 128(i)(b) of KPR Act, 1994, no other details are mentioned in the order. The order is also silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioners are 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 them. 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 preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance was 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 Crl.M.C.6592/2016 3 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) KLD 889]. - 4.I have perused the materials on record as well. 5.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 sufficient ground for proceeding. The Magistrate, has, Crl.M.C.6592/2016 4 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. ## 6.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_ Crl.M.C.6592/2016 5 _own procedure and not according 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."_ Crl.M.C.6592/2016 6 7.On perusing Annexure-1 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 are involved in a single crime could not have been taken as the basis to issue a preventive order against the petitioners 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 Crl.M.C.6592/2016 7 general statements. Annexure-1 order does not state in what way or with reference to what matter the petitioners were likely to commit a 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-1 order does not fulfill the requirement under Section 111 and reveals total non application of mind. - 8.I am unable to sustain Annexure-1 order for the reasons detailed above. - The petition is allowed. All further proceedings against the petitioners now pending as M.C.No.191 of 2016 on the file of the Sub Divisional Magistrate Court, Thalassery, are quashed. **sd/RAJA VIJAYARAGHAVAN.V. JUDGE** kp/7.11