Riyas T.V., Muhammed Salih P.K. and Jaffer Rahman N.V. v. State of Kerala and Sub Divisional Magistrate, Kozhikode (OP(Crl.) No. 217 of 2023)

OP(CRL.) NO. 217 OF 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945** **OP(CRL.) NO. 217 OF 2023** **AGAINST THE ORDER/JUDGMENT MC 172/2022 OF SUB DIVISIONAL** **MAGISTRATE,KOZHIKODE** ## **PETITIONER/S:** 1 RIYAS .T.V AGED 30 YEARS S/O ABDULLA, THAIVALAPPIL HOUSE, PALLIKANDY, KOZHIKODE DT., PIN - 673003 2 MUHAMMED SALIH .P.K AGED 35 YEARS S/O IMBICHI KOYA, THANGAL HOUSE, PALLIKANDY, KOZHIKODE DT., PIN - 673003 3 JAFFER RAHMAN .N.V AGED 30 YEARS S/O BEERAN KOYA, BAITHUL JASEENA, PALLIKKANDY, KALLAI P.O, KOZHIKODE DT., PIN - 673003 BY ADVS. M.MUHAMMED SHAFI T.RASINI AYISHA AFRIN A.V.K. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE SUB DIVISIONAL MAGISTRATE CIVIL STATION, KOZHIKODE, PIN - 673005 OP(CRL.) NO. 217 OF 2023 2 3 THE STATION HOUSE OFFICER CHEMMANGAD POLICE STATION, VATTAMPOIL, KALLAI, KOZHIKODE DT., PIN - 673003 ## **OTHER PRESENT:** SMT.SREEJA.V, PP THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(CRL.) NO. 217 OF 2023 3 ## **P.V.KUNHIKRISHNAN, J** ## **--------------------------------------O.P. (Crl) No. 217 of 2023 -------------------------------------Dated this the 17[th] day of October, 2023** ## **JUDGMENT** ## This O.P.(Crl.) is filed with following prayers : “i. To set aside Exhibit P5 proceedings dated 01-03-2023 and P6 order dated 30-12-2022 issued by the 2[nd] respondent. ii. To declare that Ext.P6 proceedings initiated by the 2[nd] respondent is illegal and arbitrary. ii. To direct the 2[nd] respondent to dispose of MC No. 172 of 2022 within a time frame as may be prescribed by this Hon'ble Court, untrammeled by the findings Exhibit P2 and P5 proceedings. iv. To issue any other order or direction that this Hon'ble Court may deem fit in the facts and circumstances of the case.” [SIC] 2. Ext.P6 is the proceedings initiated by the Sub Divisional Magistrate, Kozhikode invoking the powers under Sec. 107 Cr.P.C. Ext.P5 is the proceedings by which the Sub Divisional Magistrate, Kozhikode directed to execute the full bond amount or to undergo jail term for 25 days. Ext.P4 is the OP(CRL.) NO. 217 OF 2023 4 warrant of arrest issued by the Sub Divisional Magistrate. The counsel relied the judgments of this Court in **Girish P. and others v. State of Kerala and another** (2009 (4) KHC 929), **Santhosh M.V and others vs. State of Kerala and others** (2014 KHC 522) and also **Bejoy K.V vs State of Kerala and Another** (2015 (5) KHC 507). 3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 4. A perusal of Ext.P6 order would not show that it is an order passed in tune with Section 107 r/w Section 111 Cr.PC. In **Girish P's** case (supra), 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:- “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 OP(CRL.) NO. 217 OF 2023 5 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 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 against whom 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 breach of peace warranting initiation of proceedings under S.107 of Code of Criminal Procedure, 1973.” 5. 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 OP(CRL.) NO. 217 OF 2023 6 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 that thereupon 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 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 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 OP(CRL.) NO. 217 OF 2023 7 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.” 6. In the light of the above dictum, I am of the considered opinion that Ext.P6 is not an order in tune with Section 111 Cr.PC and 107 Cr.PC. It is only stated that a crime is registered at Chemmangad Police Station against the counter petitioners. The substances of information received and the details of the case are not narrated in the notice. Therefore, I am of the considered opinion that Exts.P5 and P6 proceedings is unsustainable. Therefore, this original petition is allowed. All further proceedings against the petitioners in Exts.P5 and P6 are quashed. ## **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS OP(CRL.) NO. 217 OF 2023 8 ## **APPENDIX OF OP(CRL.) 217/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE FIR IN THE CRIME NO. 131 OF 2022 OF CHEMMANGAD POLICE STATION Exhibit P2 TRUE COPY OF THE ORDER DATED 04-06-2022 IN MC. NO. 172 OF 2022 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE FIR IN CRIME NO. 396 OF 2022 REGISTERED BY THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE WARRANT OF ARREST DATED 30-12-2022 Exhibit P5 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 01-03-2023 Exhibit P6 TRUE COPY OF THE ORDER IN MC. NO. 456 OF 2022 UNDER SECTION 107 CR.PC DATED 30-122022 ISSUED BY THE 2ND RESPONDENT