Sajeev and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935** ## **Crl.MC.No. 3829 of 2012** **--------------------------MC NO. 11/2011 OF SUB DIVISIONAL MAGISTRATE,KOLLAM CRIME NO. 74/2011 OF YEROOR POLICE STATION , KOLLAM** **....** ## **PETITIONER(S)/COUNTER PETITIONER NOS. 7,9,10,11 AND 12:** **--------------------------------------------------------------------------------------------------------** ## **1. SAJEEV,** ## **S/O. PURUSHOTHAMAN, PUTHENKADAYILVEEDU, VILAKKUPARA.** ## **2. AMBILIKUTTAN,** ## **S/O. NARAYANAN, VILAYILVEEDU, VILAKKUPARA.** ## **3. KRISHNAKUMAR,** ## **S/O. RADHAKRISHNAN, MAKAYIRAM, VILAKKUPARA.** ## **4. BIJU,** **S/O. RAMACHANDRAN, VILAYILVEEDU, KAMPAKATHADOM, VILAKKUPARA.** ## **5. PRAKASH,** **S/O. KARTHIKEYUAN, PRAKASH MANDIRAM, DARPPANA, VILAKKUPARA.** **BY ADVS.SRI.V.V.RAJA SRI.M.T.SURESHKUMAR** **RESPONDENT(S):PETITIONER:** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY PUBLIC PROSECUTOR SRI.JITHESH.R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.3829/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE FIR CRIME NO. 74 OF 2011 DATED 19-01-2011 OF THE YEROOR POLICE STATION.** **ANNEXURE A2 ORIGINAL OF THE ORDER DATED 14-02-2011 IN M.C NO. 11 OF 2011 OF THE SUB DIVISIONAL MAGISTRATE, KOLLAM.** **RESPONDENTS' ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.3829 of 2012 ---------------------------------------------Dated this the 7[th] day of March, 2014 ## **ORDER** Petitioners, five in numbers, who are counter petitioners 7 and 9, to 12 in M.C.No.11/2011 of Sub Divisional Magistrate, Kollam, have filed this petition to quash Anneuxre-A2 and all futher proceedings, which was taken on the basis of Crime No.74/2011 of Yerror Police, by invoking the inherent jurisdiction U/s.482 Cr.P.C. They filed this petition on the ground that if the above proceedings are continued, it is a mere abuse of process of Court, since the time stipulated U/s.116(6) Cr.P.C. has been violated against the petitioners. There is a mandatory direction under the above Section to complete the enquiry within a period of six months from the date of commencement, which was not satisfied by the learned Magistrate. Hence, they seek to Crl.M.C.No.3829/12 2 quash the proceedings by invoking the inherent jurisdiction. 2. The allegation in Annexure-A1 was that the petitioners and the other accused in the above case had committed unlawful activities which affected public tranquillity within the jurisdiction of the Yerror Police and for that S.I. of police filed written information to the Executive Magistrate that they are likely to commit breach of peace or disturb the public tranquillity or to do some wrongful act in the locality. Therefore, petitioners and other accused were directed to appear in person before the executive Magistrate to show cause why they should not be ordered to execute a bond for keeping the peace for a period of one year. 3. The learned counsel for the petitioners contended that nothing was mentioned in Annexure-A1 to show the breach of peace or disturbing public tranquillity for taking action u/s.107. In the absence of such Crl.M.C.No.3829/12 3 allegation, no question of furnishing security for good behaviour arises. Annexure-A2 was issued without conducting any enquiry by the Executive Magistrate. Therefore, the continuation of the proceedings, pursuant to Anneuxres-A1 and A2 is nothing but an abuse of process of court. The learned counsel for the petitioners relied the decisions in _**Muhammedkutty**_ v. _**State of Kerala**_ [2007(2) KLT 820] and _**Shameer and Others**_ v. _**State of Kerala and another**_ [2008(4) KHC 177]. 4. The learned Government Pleader appearing for the respondent conceded that the enquiry was not completed within six months as stated u/s.116(6) Cr.P.C., which was due to non-co-operation of the lawyers appearing for the petitioners in the Executive Magistrate Courts. 5. Now the short question that arises for consideration is whether the enquiry stipulated u/s.116(6) Cr.P.C. was conducted in this case by the Executive Crl.M.C.No.3829/12 4 ## Magistrate. Section 116 (6) Cr.P.C. reads as follows: “The enquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against the person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.” According to the Code, when an Executive Magistrate receives information that any person is likely to commit breach of peace or disturbing the public tranquillity or do any wrongful act that may probably cause breach of peace or disturbed public tranquillity and he is of the opinion that there is sufficient ground for proceedings, he may require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for a period not exceeding one year. When such an order under Section 107 Cr.P.C. is made, if it necessary to require any person to show cause and shall Crl.M.C.No.3829/12 5 make an order in writing setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be enforced and the number, character and class of sureties required are to be intimated to the concerned person. When any person in respect of whom such order is issued, is present in Court, it shall read over to him or if he desires, the substance thereof shall be explained to him. If such person is not present as directed, the Magistrate shall issue summons requiring him to appear or when such person is in custody issue a warrant directing the officer, in whose custody he is, to bring him before the Court. 6. When an order U/s.111 to 113 is made, the Magistrate shall proceed to enquire into the truth of the information upon which the action has been taken and he shall take further evidence as may be necessary. The enquiry mentioned U/s.116 shall be made in the manner prescribed for conducting trial and recording of evidence in Crl.M.C.No.3829/12 6 summons cases. Here, the petitioners contended that they appeared before Court on 10.6.2011, 1.7.2011, 19.8.2011, 30.9.2011, 28.10.2011, 9.12.2011, 20.1.2012, 9.3.2012, 4.5.2012, 29.6.2012, 24.8.2012, 5.10.2012, 16.11.2012 and 7.12.2012. No enquiry was conducted as stipulated U/s.116 (6). There is a mandatory provision provided U/s.116(6) of the Code. According to Section 116 (6), the enquiry shall be completed within a period of six months from the date of its commencement and if such enquiry is not so completed, the proceedings under this Chapter shall stand terminated on expiry of the said period. If the enquiry is not completed within a period of six months, special reasons shall be recorded in writing by the Magistrate. 7. Here, no such reasons are recorded by the learned Magistrate, after initiating action as per Annexures-A1 and A2. It is clear from the above Section that sub section 6 provides a time limit for completing the Crl.M.C.No.3829/12 7 proceeding by an executive magistrate, when he starts his enquiry as per 116. The object of the section is to prevent breach of peace and proceedings is to be completed within a reasonable time of six months. Therefore, it is mandatory that the first part of the enquiry must be completed within a period of six months. A special power has to be given to the magistrate under sub section 6 that if the enquiry is not completed within a period of six months, he shall record the special reasons for to do so. If no final orders are passed upto six months of the commencement of enquiry or no special reasons are mentioned by the magistrate to extend the period of the limitation, the proceedings will automatically come to an end. Apex Court in _**Madhu Limaye**_ v. _**Sub Divisional Magistrate, Monghyr and others**_ [1970(3) SCC 746] in paragraph 42 held as follows: “42. In our opinion the words of the section are quite clear. As said by Straight J. in Emperor v, Babua [ILR 6 All 132] the order under Section 112 is on hearsay but the inquiry under Section 117 is to ascertain the Crl.M.C.No.3829/12 8 truth of the necessary information. Subsection (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary and in default it is necessary to put the person in custody. Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate. The facts must be of definite character. In Nafar Chandra pal v. The King Emperor there was only a petition and a report and there were not found sufficient material. In some of the cases before us no effort was made by the Magistrate to inquire into the truth of the allegations. The Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely one-sided. It cannot be described as an inquiry with in an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to aske for an interim bond or placing the person in custody in default. In an old case reported in A.D. Danne v. Hemchandra a Full Bench of the Calcutta High Court went into the matter. The case arose before the present Code of Criminal Procedure and therefore, there was no provision for an interim bond. But what Sir Barnes Peacock C.J. Said applies to the changed law also not only with regard to the ultimate order but also to the interim order for a bond. The section even as it is drafted today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were Crl.M.C.No.3829/12 9 allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore, it is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed.” The above decision was followed by the Division Bench of this Court in _**Muhammedkutty**_ v. _**State of Kerala**_ [2007 (2) KLT 820 held as follows: (para 1,7 and 8) “When an inquiry under S.116 of the Code of Criminal Procedure commences is the question referred by a learned single Judge of this court to be decided by the Division Bench. In Mathukutty v. State of Kerala (1995 (1) KLT 742) it was held that the inquiry will commence only from the date of recording of evidence. Another learned single Judge in Saju Varghese and Ors v. State (2005 (1) KLD (Cri.) 570) held that the inquiry commences for the purpose of S.116 (6) from the date of appearance of the counter petitioner before the Sub Divisional Magistrate and not from the date of recording of evidence. S.116(6) Cr.P.C. provides that inquiry under S.116 shall be completed within a period of six months from the date of commencement and on the expiry of six months, the said period shall stand terminated unless for special reasons to Crl.M.C.No.3829/12 10 be recorded in writing the Magistrate otherwise directs. Chapter VIII of Cr.P.C. (Ss.106 to 124) provides preventive measures for keeping public peace etc. and are aimed at persons who are potential danger to the general public by reason of their likelihood of commission of certain offences by them. Therefore, they can be directed to execute a bond as security for keeping peace and for good behaviour and on default of execution of bond, results in the detention. Even though, in appearance, it as an administrative order as held in Madhu Limaye & Anr. v. Sub Divisional Magistrate, Monghyr & Ors. (AIR 1971 SC 2486), it is really judicial in character, Ss.106 to 110 details circumstances when a person can be directed to execute a bond or security. Ss.111 to 124 provides the procedure according to which security and execution of bond can be asked for keeping peace or for good behaviour. S.111 obliges that the Magistrate acting under S.107 to 110 to require such persons to show cause by order in writing setting forth the substance of the information received, the amount of 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 above provisions are mandatory in character failing which the proceedings will become invalid as held in Nareshkumar Jain & Anr. State of UP & Ors. (1993 Crl. L.J. 1352- All.). Before issuing an order of show cause notice under S.111, Magistrate shall apply his mind and shall consider the police report and shall be satisfied that a prima facie case has been made out to take action under S.107 to 110 (See: Babulal & Anr. v. State of M.P. (1991 Crl.L.J. 786). When a person is called upon to show cause why he should not be required to give security for good behaviour, he must be ready with his evidence when he appears in obedience to the notice unless he obtains an adjournment for reasonable cause. The Crl.M.C.No.3829/12 11 notice issued to the person must accompany the preliminary order under S.111 S.112 prescribes the procedure when such person is present in court. The Magistrate is bound to read over to him the substance of the order/show cause notice passed against him and it shall be explained to him. If he so desires, S.113 enables the Magistrate to summon directing him to appear before the Magistrate. Proviso to S.113 enables the Magistrate to issue arrest warrant in certain cases and S.114 provides that copy of the order with show cause notice should be delivered along with the warrant. S.115 gives power to dispense with personal attendance and S.116 prescribes the procedure to conduct the inquiry.” Therefore, it is clear that on the expiry of the said period mentioned U/s.116(6), the proceedings stands terminated that is the proceedings come to an end automatically and no order of the Magistrate will subsist thereafter and the Magistrate becomes functus officio. It is well established that in Statutes the period of limitation is prescribed for the completion of proceedings and a power is also given to the concerned court to extend that period, then that power can be exercised in accordance with law within the statutory limit provided thereunder. After the expiry of that period, the Courts does not have any power to extend the Crl.M.C.No.3829/12 12 limitation for the continuance of the enquiry. Such powers were not invoked or exercised by the learned executive magistrate while he was conducting enquiry as mentioned earlier. In _**Shameer 's case (supra)**_ this Court took the similar view followed by the earlier Division Bench decision. Therefore, analysing the facts and circumstances in this case, I am of the view that this is a fit case to invoke the inherent jurisdiction U/s.482 Cr.P.C. Apex Court in _**Zandu Pharmaceutical Works Ltd**_ V. _**Mohd.Sharaful Haque (**_ 2005)1SCC 122 : (AIR 2005 SC 9), the Supreme Court held as follows: “It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto”. 8. Therefore, if the proceedings are continued, it Crl.M.C.No.3829/12 13 amounts to a mere abuse of process of the Court. Hence, invoking the inherent jurisdiction, I quash Annexures-A1 and A2. Crl.M.C. is allowed as above. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3829/12 14