M.P. Suresh Kumar (Harikutttan) S/O Prabhakar Nair v. State of Kerala and The Sub Inspector of Police, Pallickathode Police Station, Pallickathode, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **THURSDAY, THE 9TH DAY OF JANUARY 2014/19TH POUSHA, 1935** ## **Crl.MC.No. 1089 of 2012 ()** **--------------------------MC 2/2012 OF SUB DIVISIONAL MAGISTRATE COURT, KOTTAYAM ------------** ## **PETITIONER/ACCUSED :** **------------------------------------** ## **M.P.SURESH KUMAR (HARIKUTTAN) S/O.PRABHAKARAN NAIR, MANJADIYIL, T.P.PURAM VAZHOOR.** ## **BY ADV. SRI.LIJI J.VADAKEDOM** ## **RESPONDENTS/STATE & COMPLAINANT :** **------------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM- 682031.** **2. THE SUB INSPECTOR OF POLICE PALLICKATHODE POLICE STATION, PALLICKATHODE KOTTAYAM (DISTRICT) - 686 001.** ## **R1 & R2 BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Mn** **...2/-** ## **Crl.MC.No. 1089 of 2012 ()** ## **APPENDIX** |**PETITIONERS' ANNEXURES :**|**PETITIONERS' ANNEXURES :**| |---|---| |**--------------------------------------------**|| |**ANNEXURE-1.**|**PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME**| ||**NO.231/08 OF PALLICKATHODE POLICE STATION (LATER**| ||**CHARGE - SHEETED AS C.C.582/08).**| |**ANNEXURE-2.**|**THE SUMMONS DATED 9.1.2012 ISSUED FROM THE OFFICE OF**| ||**THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM TO THE**| ||**PETITIONER.**| |**ANNEXURE-2(a).**|**THE INTERIM ORDER DATED 9.1.2012 ISSUED FROM THE**| ||**OFFICE OF THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM TO**| ||**THE PETITIONER.**| |**ANNEXURE-3.**|**COPY OF THE REPORT RECEIVED BY THE PETITIONER IN**| ||**M.C.2/2012 BEFORE THE SUB DIVISIONAL MAGISTRATE,**| ||**KOTTAYAM.**| |**ANNEXURE-4.**|**THE PHOTOCOPY OF THE JUDGMENT DATED 18/6/2012 IN CC**| ||**NO. 582/08 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE**| ||**COURT-I, KANJIRAPPALLY.**| |**ANNEXURE-5.**|**COPY OF THE FINAL REPORT IN CC NO. 1164/2009 (CRIME**| ||**NO. 396/09 OF MANIMALA POLICE STATION) BEFORE THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT-II,**| ||**KANJIRAPPALLY.**| |**RESPONDENTS'**|**EXHIBITS : NIL**| |**-------------------------------------------------------------**|| ||**//TRUE COPY//**| **P.A. TO JUDGE Mn** ## **A.HARIPRASAD, J.** **------------------------------------------------** ## **Crl.M.C.No.1089 of 2012 -----------------------------------------------Dated this the 9[th] day of January, 2014.** ## **O R D E R** Petitioner is challenging Annexure 2 (a) order passed by the Sub Divisional Magistrate, Kottayam in a proceedings under Section 107 Cr.P.C. The impugned order is passed for the reason that the petitioner was involved in Crime No.231/2008 of Pallickathode Police Station registered under Sections 324 ad 294(b) r/w Section 34 IPC. 2. Heard the learned counsel for the petitioner and the learned Public Prosecution. 3. Annexure 1 is the F.I.R in the above crime. The first information statement would go to show that on 19-09-2008 the petitioner attacked the defacto complainant, who is a lady on account of a dispute regarding the repayment of money. It is seen from Annexure 4 judgment of the learned Magistrate, Kanjirappally that the petitioner had been tried for the said offence and he was acquitted. Therefore, it is evident that the **Crl.M.C.No.1089 of 2012 2** case against the petitioner referred to in Annexure 2(a) has been concluded. Annexure 5 is the final report in relation to crime No.396/2009 registered on 28-10-2009 against the petitioner alleging offences punishable under Sections 283, 427 r/w Section 34 IPC. However Annexure 5 does not figure in Annexure 2(a). 4. Learned counsel for the petitioner contended that none of the conditions required to pass an order under Section 107 Cr.P.C has been satisfied. On reading Section 107 Cr.P.C, it is evident that 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 peace etc. and is of opinion that there is sufficient ground for proceeding, he may, in the manner provided in the Code require such person to show cause why he should not be ordered to execute a bond for keeping the peace for such period, not executing one year, as the Magistrate thinks fit. It is evident that the Magistrate will have **Crl.M.C.No.1089 of 2012 3** to receive an information regarding the likelihood of commission of breach of peace or disturbance of public tranquility. Further, the Magistrate should form an opinion based on the facts that there is sufficient ground for proceeding to require such person to show cause why he should not be ordered to execute a bond. Attention of this court is drawn to decision of a learned Single Judge of this court in _**Peethambaran v. State of Kerala (1980 KLT 876)**_ which considered the scope of ambit under Section 107 Cr.P.C. The relevant portions in the decision are extracted hereunder : _“ It might be noted that this section does not contemplate the drawing up of proceedings automatically whenever information of the kind mentioned in the section is received by the Magistrate. Action can be taken only when the Magistrate is of opinion that there are sufficient grounds for proceeding. The Magistrate has to exercise his discretion with reference to the credibility and sufficiency of the information_ **Crl.M.C.No.1089 of 2012 4** _received by him. The prior formation of the opinion by the Magistrate under S.107 is that which gives him jurisdiction to proceed further under S.111 and following sections. The formation of opinion should be on cogent material. Though the initiation of the on proceedings depends Magistrate's subjective satisfaction and in his discretion, there should be cogent materials before him on which a reasonable opinion for initiating the action could be formed.”_ 5. Full Bench of this court in _**Moidu v. State of Kerala**_ _**(1982 KLT 578 (F.B))**_ was called up to consider correctness of the decision in _**Chirukandath Chandrasekharan v. State of Kerala (1970 KLJ 61).**_ After surveying the relevant provisions, following dictum is laid down : _“ 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_ **Crl.M.C.No.1089 of 2012 5** _present apprehension in the sense that it must have some relevance to the apprehension of likelihood of breach of the peace or disturbance of public tranquility. The contention that past conduct should not at all be the basis for taking proceedings under S.107 does not appear to be sound. There is no justification to read such a limitation into the section. In fact it is the events of the past that would furnish material to infer about the tendencies of a person which in turn will have bearing on the likelihood of a similar conduct on his part in the present or immediate future. It cannot be said as a rule that these should not be the material furnishing the basis for action under S.107 of the Code and it may not also be said that it could be the only material. That would depend upon facts and circumstances of each case. Normally S.107 proceedings should not be used as parallel proceedings. But there may be need for proceedings under S.107 and the material_ **Crl.M.C.No.1089 of 2012 6** _that is available for action under S.107 may happen to be material on the basis of which investigation by the police is pending or trial before courts is on. Regard being had to the object of S.107 and particularly the fact that it is not intended as a punitive action but preventive even where punitive action is taken preventive action may be called for if the character of the information is such that the Magistrate would be justified in acting on such information. As a rule of prudence it may be said that information about events which are the subject matter of pending prosecutions may not by themselves be relied on by the Magistrate as information sufficient to warrant an order under S.107. Ultimately it would be for the Magistrate to consider whether on an overall consideration of the facts available to him by way of information he could form the opinion that the person against whom he was proposing to take action under S.107 was likely to cause_ **Crl.M.C.No.1089 of 2012 7** _imminent breach of the peace or disturb the public tranquility.”_ 6. Learned counsel placed reliance on another decision rendered by a Single Judge in _**Girish v. State of Kerala (2009(4) KLT SN 102)**_ , _**(Case No.99)**_ . In that decision it is observed that in the absence of disclosing the substance of the information received by the Sub Divisional Magistrate on which he was satisfied that the proceeding under Section 107 Cr.P.C is to be initiated, the proceedings cannot be said to be proper. 7. Keeping in mind this legal position, if we read Annexure 2(a) order it can be seen that the Executive Magistrate has mechanically passed an order without proper application of mind, +-except mentioning the number of crime in which the petitioner was involved in 2008. No reason is forthcoming from Annexure 2(a) issued on 9-1-2012 to infer that the Executive Magistrate had applied his mind before passing the order. It is seen that Annexure 2(a) order was lapsed by efflux of time. However, the learned counsel for the petitioner would contend **Crl.M.C.No.1089 of 2012 8** that if Annexure 2(a) order is allowed to remain, it will be a stigma for the petitioner. Considering the statutory provision and the precedent on the point, I am of the opinion that Annexure 2 (a) order passed by the Magistrate is not legally sustainable. Pendancy of another case revealed from Annexure 5 cannot be taken as a reason for approving the legally unsustainable order (Annexure 2(a)). In the result, the petition is allowed. Annexure 2 summons and Annexure 2(a) order before the Sub Divisional Magistrate, Kottayam are hereby quashed. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk