Mahesh Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943 ## CRL.MC NO. 201 OF 2018 AGAINST THE ORDER IN MC 155/2017 OF SUB DIVISIONAL MAGISTRATE COURT, THIRUVANANTHAPURAM ## PETITIONER/COUNTER PETITIONER: MAHESH KUMAR S/O.MOHANAN PILLAI, NEAR MADTHIVILA TEMPLE,AMKIVILA VEEDU, PAPPANAMCODE, THIRUVANANTHAPURAM. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE SUB INSPECTOR OF POLICE, NEMOM, THIRUVANANTHAPURAM. ## OTHER PRESENT: PP-SRI.ARAVIND V. MATHEW THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 03.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No.201 of 2018 2 ## O R D E R The petitioner is the counter petitioner in M.C.No.155/2017 initiated by the Sub Divisional Magistrate, Thiruvananthapuram under Section 107 of the Code of Criminal Procedure(Cr.PC). The petitioner has filed this Crl.M.C. challenging Annexure-A preliminary order issued by the Sub Divisional Magistrate, Thiruvananthapuram under Section 111 of Cr.PC directing the petitioner to appear before the court of Sub Divisional Magistrate at 11 a.m. on 22.11.2017 and to show cause why an order should not be issued under Section 107 Cr.PC r/w. Section 111 of the said code against the petitioner requiring him to execute a bond for Rs.50,000/- with two solvent sureties of Rs.25,000/- each to keep peace for one year. 2. Heard Sri. Sasthamangalam S. Ajithkumar, the learned counsel for the petitioner and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the State. Crl.MC.No.201 of 2018 3 3. The specific case advanced by the learned counsel for the petitioner is that, the proceedings initiated as per Annexure-A is not legally sustainable, as the preliminary order passed under Section 111 of the Cr.PC does not contain the substance or contents of the information received by the Sub Divisional Magistrate, based on which the preliminary order was passed. He also placed reliance upon the judgments in Moidu v. State of Kerala [1982 KLT 578], Henry Vijayakumar v. State of Kerala [2009(4) KLT 495] and Gireesh P.and Others v. State of Kerala and Another [2009(4)KHC 929. 4. On the other hand, the learned Public Prosecutor would contend that, Annexure-A order contains the details of case in Crime No.889/2017 and 890/2017 of Nemom Police Station and it is specifically stated that the counter petitioner is repeatedly committing similar crimes and causing breach of peace, and had disturbed public tranquility in the local limits of the court. In such circumstances, it was contended that the Crl.M.C is Crl.MC.No.201 of 2018 4 without any merit and the same is liable to be dismissed. 5. The only question that arises is as to whether, while issuing Annexure-A order, the Sub Divisional Magistrate have made proper assessment of the report claimed to have been submitted by the Police and a subjective satisfaction has been arrived at, on the basis of the same. The legal requirement in this regard is that such subjective satisfaction and the appreciation of the materials relied on, should be discernible from the order passed by the Sub Divisional Magistrate. Section 107(1) of the Cr.PC is extracted hereunder: _“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 the opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, 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 such period, not exceeding one year, as the Magistrate thinks fit.”_ Crl.MC.No.201 of 2018 5 ## 6. In Henry Vijayakumar’s case (supra), it ## was observed as follows: _“7. Annexure III order does not disclose the contents of the report based on which the Sub Divisional Magistrate expressed satisfaction to invoke the power under S.107 of Code of Criminal Procedure requiring petitioner to appear and show cause why he shall not execute a bond. It does not show what was the allegation raised in the complaint against the petitioner, based on which the Sub Divisional Magistrate found that it is necessary to require the petitioner to execute a bond. As declared by the Apex Court in Madhu Limaye's case (supra), when it is under Annexure III foundation, the entire case is built up, Sub Divisional Magistrate is bound to disclose the entire facts so that petitioner could resist the proceedings when he appears. Apex Court held:_ _"The procedure begins with S.112. It requires that the Magistrate acting under S.107 shall make an order in writing, setting, forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. 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 bodily 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."_ _As found by this Court in Mukthar's case (supra), when Annexure III order does not disclose any detail, which is mandatory, it can only be quashed.”_ In Gireesh’s case (supra), the aforesaid view was reiterated by this Court. Crl.MC.No.201 of 2018 6 7. When Annexure-A order passed in this case is considered in the light of the principles laid down by this Court as above, it can be seen that there is some force in the contention put forward by the learned counsel for the petitioner. It is true that, in Annexure-A order Crime Nos.889/2017 and 890/2017 of Nemom Police Station are seen mentioned. However, absolutely no details of such crime such as the offences alleged against the petitioner, the acts which constituted the aforesaid offences and the role played by the petitioner in the commission of the said offences etc, are seen mentioned therein. Similarly, even though it is alleged that the petitioner herein is repeatedly committing such crimes, causing breach of peace and disturbing public tranquility within the local limits of the jurisdiction of the court, no details as to the crime numbers registered in respect of the same have been mentioned therein. Apart from the above, even though certain warnings were claimed to have been issued to the petitioner to abstain from the said activities, Crl.MC.No.201 of 2018 7 no details of such warnings are seen mentioned in Annexure-A order. 8. Since, no particulars of the acts which forms the basis of subjective satisfaction claimed to have been arrived at by the Sub Divisional Magistrate are conveyed to the petitioner through the preliminary order under Section 111 of the Cr.PC., it may not be possible for the petitioner to furnish explanation for the same. Since the proceedings under Section 107 r/w. Section 111 Cr.PC are in the nature of interference in the personal liberty of a citizen guaranteed by the Constitution of India, it should contain all the details based on which the conclusion against him has been arrived at. In the absence of such details, the entire proceedings are vitiated, as held by this Court in the judgments referred above. 9. As mentioned above, Annexuxre-A order does not contain the requisite details so as to enable the petitioner herein to properly defend the matter and hence it would cause serious prejudice to the petitioner. Crl.MC.No.201 of 2018 8 10. At this juncture, the learned Public Prosecutor submitted that he was also involved in certain other cases as well. However, it can be seen that the only cases referred to in the preliminary order are with respect to Crime Nos. 889/2017 and 890/2017. Even if he was allegedly involved in any other cases, the same cannot be a ground for initiating proceedings under Section 107 of Cr.PC, unless such offences are specifically included in the report submitted before the Sub Divisional Magistrate and the impact of the same has been considered by the learned Magistrate while passing the preliminary order. Annexure-A order does not reflect the consideration of any such offences and hence the same cannot be treated as a valid reason for allowing the proceedings pursuant to Annexure-A to be continued. In the light of the observation as above, I am of the view that the entire proceedings initiated on the basis of Annexure-A are vitiated, as the said order does not contain the proper substance of the materials based on which the subjective satisfaction Crl.MC.No.201 of 2018 9 was arrived at by the Sub Divisional Magistrate. Accordingly, I quash Annexure-A order. However, it is made clear that this order shall not prevent the Sub Divisional Magistrate from initiating any proceedings under Section 107 of Cr.PC against the petitioner herein, if there is any fresh cause of action for initiating such proceedings. Crl.M.C. is allowed with the findings and observations. Sd/- ZIYAD RAHMAN A.A., JUDGE pkk Crl.MC.No.201 of 2018 10 ## APPENDIX OF CRL.MC 201/2018 PETITIONER’S ANNEXURE: ANNEXURE A THE TRUE COPY OF THE ORDER DATED 27.10.2017 IN M.C.NO.155/2017 OF THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM.