High Court of KeralaSingle Judge2017-07-17Petition allowed; Annexure-E order quashed; all...

RadhaKrishnan and Anitha v. State of Kerala and The S.I. of Police, Chavara

Case / Petition Number:Crl.M.C.No.10 of 2014

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: RAJA VIJAYARAGHAVAN V.
Judgment Date: 2017-07-17
Court Decision / Holding: The petition is allowed. Annexure-E order is quashed, and all further proceedings in MC No.523 of 2013 before the Sub Divisional Magistrate, Kollam, are set aside.
Final Disposition: Petition allowed; Annexure-E order quashed; all further proceedings in MC 523 of 2013 before the Sub Divisional Magistrate, Kollam, are quashed.

Parties to the Case

Appellants / Petitioners

RadhaKrishnan
Anitha

Respondents

State of Kerala
The S.I. of Police, Chavara Police Station, Kollam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.V. Dileep

Counsels for Respondents

• Public Prosecutor, Sri. M.R. Dhanil

Case Synopsis & Summary

This is a criminal miscellaneous petition under section 107 CrPC heard by a single judge of the Kerala High Court. The petition challenged an Annexure-E order dated 29.10.2013 issued by the Sub Divisional Magistrate, Kollam, directing the petitioners to enter into a bond of Rs.20,000 with two sureties for keeping peace for one year, following a solitary FIR registered against them under section 107 CrPC. The petitioners contended that the initiating order was issued without adequate material demonstrating a likelihood of breach of peace, and that the magistrate failed to specify the grounds or facts that would justify preventive action. Counsel for the petitioners argued that the order violated statutory requirements under section 111 CrPC and that the six-month inquiry period under section 116 CrPC had long since lapsed, rendering the proceedings untenable. The Public Prosecutor defended the preventive action as warranted by the petitioners’ alleged propensity to disturb public tranquility. The court noted that preventive orders under section 107 seek to prevent future offences, not punish past conduct, and emphasized that such powers must be exercised strictly in accordance with law. The judge quashed the Annexure-E order, held that the proceedings were misconceived and violative of statutory safeguards, and thus discharged the petition and quashed further proceedings in MC 523/2013.

Provisions of Law Cited

Section 107 of the Code of Criminal ProcedureSection 111 of the Code of Criminal ProcedureSection 116 of the Code of Criminal Procedure

Legal Doctrines & Maxims

The object of the Section is prevention and not punishment of crimes.
The power should be exercised strictly in accordance with law.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that proceedings under section 107 CrPC were initiated on the basis of a solitary crime with inadequate materials to satisfy the mind of the Magistrate that the petitioners were likely to disturb peace. They argued that Annexure-E order failed to disclose relevant factors, grounds, or tangible evidence justifying preventive action; it did not comply with section 111 CrPC and violated the object of section 107, which is preventive, not punitive. The period for inquiry under section 116 CrPC had elapsed, and the order appeared to have been issued in a callous manner, lacking proper application of mind.

Contentions of Respondents

The learned Public Prosecutor argued that the petitioners’ potential to engage in further acts threatening peace warranted preventive action under section 107 CrPC. He asserted that the order was grounded in material suggesting a likelihood of breach of peace and that constitutional protections should yield to the necessity of keeping public tranquility in the locality.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Moidu v. State of Kerala	1982 KHC 139; 1982 KLT 578	Mentioned Only	Cited as a Full Bench authority relevant to the object and use of Section 107 powers but not expressly applied or distinguished in the order.
Peethambaran v. State of Kerala	1980 KHC 239; 1980 KLT 876; ILR 1980 (2) Ker. 589	Mentioned Only	Cited as authority regarding the proper framing and grounds under section 107, without explicit adoption or distinction in the decision.
Santhosh M.V. and others v. State of Kerala	2014 (3) KLT 837	Mentioned Only	Cited in context of cautions about ground realness and mind of magistrate, without showing a direct application.
Girish P and Others v. State of Kerala	2009 (4) KHC 929	Mentioned Only	Cited as related precedent but not treated as controlling authority in the present order.
M.V. and Others v State of Kerala	2014 (2) KLD 519	Mentioned Only	Cited among authorities discussing Section 107 powers and preventive action, without explicit validation.
Bejoy K.V. v State of Kerala	2015 (2) KLD 889	Mentioned Only	Cited as relevant jurisprudence, not expressly followed or overruled in the instant decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939** ## **Crl.MC.No. 10 of 2014 ()** **------------------------** **AGAINST THE ORDER IN MC 523/2013 of SUB DIVISIONAL MAGISTRATE,KOLLAM DATED 29TH OCTOBER 2013, CRIME NO. 2020/2013 OF CHAVARA POLICE STATION , KOLLAM.** ## **PETITIONER(S)/PETITIONERS/COUNTER PETITIONERS 2 & 3:** **---------------------------------------------------** **1. RADHAKRISHNAN, AGED 50YRS, S/O.RAMAKRISHNAN,R.A SADANAM, CHAVARA MURI,CHAVARA, KOLLAM DISTRICT.** **2. ANITHA, AGED 45YRS., W/O.RADHAKRISHNAN,R.A SADANAM, CHAVARA MURI,CHAVARA,KOLLAM DISTRICT** **BY ADV. SRI.P.V.DILEEP.** ## **RESPONDENT(S)/RESPONDENTS/STATE & PETITIONER:** **---------------------------------------------** **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **2. THE S.I OF POLICE, CHAVARA POLICE STATION, CHAVARA,KOLLAM DISTRICT.** ## **R BY PUBLIC PROSECUTOR SRI. M.R DHANIL.** **THIS CRIMINAL MISCLLANEOUS CASE HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **DXY** ## **CRL.MC.NO. 10 OF 2014 () ------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **ANNEXURE A: A TRUE COPY OF FIR AND REPORT FILED BY 2ND RESPONDENT IN CRIME NO 2020/2013 OF CHAVARA POLICE STATION IN KOLLAM. ANNEXURE B: THE TRUE COPIES OF COMPLAINTS FILLED BY THE PETITIONERS. ANNEXURE C: A TRUE COPY OF THE DIRECTIONS ISSUED TO 2ND RESPONDENT AND OTHER HIGHER POLICE AUTHORITIES. ANNEXURE D: THE TRUE STATEMENT TAKEN BY PETITIONERS ALONG WITH CRIME NO 2020/2013 OF CHAVARA POLICE STATION IN KOLLAM** **ANNEXURE E: A TRUE COPY OF THE COPY OF SUMMONS ISSUED FROM THE SUB DIVISIONAL MAGISTRATES COURT,KOLLAM.** ## **RESPONDENT(S)' EXHIBITS: NIL** **----------------------------** **\\TRUE COPY\\** **PA TO JUDGE** **DXY** ## **RAJA VIJAYARAGHAVAN V., J ----------------------------------Crl.M.C. No.10 of 2014 ----------------------------------Dated this the 17[th] day of July, 2017** ## **ORDER** - 1.The petitioners are proceeded under Section 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the Sub Divisional Magistrate, Kollam on a report filed by the Sub Inspector of Police, Chavara Police Station. By Annexure-E order, the petitioners have been called upon to appear before the said officer in person at 11.00 a.m. on 15.11.2013 and to show cause why they should not be required to enter into a bond of Rs.20,000/- with two 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.It is submitted by the learned counsel that the Crl.M.C. 10/2014 2 proceedings have been initiated on the basis of a solitary crime, and that too, one registered for the purpose by the Sub Inspector, Chavara Police Station under section 107 of the Code. 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 order falls short of the mandatory requirements under Section 111 of the Code. Reliance is 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 learned Single Judges in **Peethambaran v. State of Kerala** [1980 KHC 239 :1980 KLT 876 : ILR 1980 (2) Ker. 589], **Santhosh** 3 Crl.M.C. 10/2014 ## **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.The learned Public prosecutor, on the other hand, submitted that it was on the basis of the fact that the petitioners are likely to indulge in further criminal acts causing breach of peace and public tranquility in the area that preventive action was initiated. - 5.I have perused the materials on record as well. - 6.Annexure E order is dated 29.10.2013. The petitioners have been called upon to execute bond for keeping peace for one year. The said period has lapsed years back. Section 116 of the Code contemplates that the inquiry under section 116 shall be completed within a period of 6 months from the date of its commencement. I am of the view that the proceedings are liable to be quashed on that ground. - 7.Further ,on perusing Annexure-E order, it is evident that the Sub Divisional Magistrate has disregarded the 4 Crl.M.C. 10/2014 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. It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-E 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-E order does not fulfill the requirement under Section 111 and reveals Crl.M.C. 10/2014 5 total non application of mind. 8.The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not punishment of crimes. It is not intended to punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion a breach of the peace. The section is designed to enable the Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility. Wide powers have been conferred on the magistrates specified in this section and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law. - 9.I am unable to sustain Annexure-E order for the reasons detailed above. The petition is allowed. All further proceedings against the petitioners now pending as M.C.No.523 of 2013 on the Crl.M.C. 10/2014 6 file of the Sub Divisional Magistrate Court, Kollam, will stand quashed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** vps 17.7.17