Sajimon Salim v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **Crl.MC.No.4193 OF 2016** ## **AGAINST THE ORDER/JUDGMENT IN MC 158/2016 OF SUB DIVISIONAL MAGISTRATE, IDUKKI** ## **CRIME NO.251/2016 OF Kumily Police Station , Idukki** ## **PETITIONER:** **SAJIMON SALIM, AGED 37 YEARS, S/O.K.A.SALIM,KINATTINKARAYIL HOUSE,KUMILY POST,IDUKKI DISTRICT-685509.** **BY ADVS. SRI.JAI GEORGE SMT.DAISY A.PHILIPOSE** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.** **2 THE SUB DIVISIONAL MAGISTRATE IDUKKI - 685590. 3 THE SUB INSPECTOR OF POLICE KUMILY POLICE STATION,IDUKKI DISTRICT - 685509.** ## **OTHER PRESENT:** **SRI. BINEESH. E.C. P.P.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-062020, THE COURT ON 08-06-2020 PASSED THE FOLLOWING:** ## **Crl.MC.No.4193 OF 2016 2** ## **O R D E R** Petitioner is the respondent in M.C.No.158 of 2016 on the file Sub Divisional Magistrate Court, Idukki registered under Section 110 of the Code of Criminal Procedure. 2. On the basis of the information that respondent is a habitual offender and there is likelihood of him being involved in activities which result in breach of peace in the locality, he was called upon by Annexure-A1 preliminary order to show cause why he should not be required to execute a bond for an amount Rs.50,000/- for three years with two solvent sureties for keeping good behaviour. 3. He accordingly appeared before the Sub Divisional Magistrate on 29.6.2016. Annexure-A4 order dated 29.6.2016 discloses that Annexure-A1 ## **Crl.MC.No.4193 OF 2016 3** order was read over to him and on his denying the charge, an inquiry was purportedly commenced on the same day and an interim bond was directed to be executed then and there, for maintaining good behaviour until conclusion of the inquiry. The inquiry is yet to be completed. 4. The petitioner seeks to quash Annexure-A1 as well as Annexure-A4 orders on the ground that they were issued without due application of mind of the learned Magistrate and also without following the procedure contemplated by Chapter VIII of the Code of Criminal Procedure. 5. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. It is contended by the learned counsel for the petitioner that materials on record are not sufficient enough to satisfy the learned Magistrate even to issue a show cause notice since the first information reports referred to in the reported ## **Crl.MC.No.4193 OF 2016 4** crime numbers do not indicate that he committed such nature of offences as to affect the public tranquility or peace. It is also contended that petitioner was not prima facie shown even to be a habitual offender by the materials on record. I am not going into the legality of Annexure-A1 preliminary order, since I am satisfied that Annexure-A4 order is illegal and liable to be quashed. 7. Under Section 116 (3) of the Cr.P.C, the Sub Divisional Magistrate can justifiably demand execution of interim bond before conclusion of inquiry, only when he is satisfied that circumstances warranted immediate measures being taken for prevention of breach of peace or disturbance of public tranquility. Another essential condition on which power to require execution of interim bond could be exercised is commencement of inquiry. On looking at the **Crl.MC.No.4193 OF 2016 5** materials on record, there is nothing to indicate that an inquiry within the meaning of Section 116 (3) of the Cr.P.C has commenced in accordance with law. Law contemplates that the procedure for inquiry shall be in the manner prescribed for conducting a trial in summons cases. It is doubtful in the facts of this case, whether inquiry under S.116(1) of the Cr.P.C could have been commenced against the petitioner without the learned Magistrate recording evidence which includes examination of the complainant. There is nothing on record to indicate that the concerned police officer at whose information, the proceedings originally commenced was examined as a witness or the requisite records were admitted in evidence in the manner required by the procedure contemplated in summons cases. In short, it is very difficult to assume that the inquiry as required u/s.116(1) was proceeded in accordance with procedure. Execution ## **Crl.MC.No.4193 OF 2016 6** of interim bond cannot be insisted quite mechanically. In the present case, the commencement of inquiry and execution of interim bond took place simultaneously the same day and it is borne out from the records that there was no application of mind on the part of the learned Sub Divisional Magistrate. 8. Dealing with the corresponding provision in the old Cr.P.C which is analogous to Section 116 of the present Cr.P.C, the Hon'ble Supreme Court in _**Madhu Limaye and Another v. Ved Murti and Others (1970 KHC 634)**_ in paragraphs 15 and 16 held as follows: “15. It appears therefore that the Magistrate used the powers under S.117(3) without commencing to enquire into the truth of the information. No sworn statement of any kind was obtained by him and he adjourned the cases for the examination of the petitioners without summoning the witnesses in support of the ## **Crl.MC.No.4193 OF 2016 7** |information.<br>He however, asked the| |---| |petitioners to furnish an interim bond or| |go to jail.| |16.<br>It appears to us that the powers of| |the Magistrate to ask for an interim bond| |were not properly exercised in this case| |and consequently the order to the| |Petitioners to furnish interim bond could| |not be made. That stage had not been| |reached under the scheme of the Code of| |Criminal Procedure.The Magistrate could| |only ask for an interim bond if he could| |not complete the enquiry and during the| |completion of the enquiry postulates a| |commencement of the enquiry, which means| |commencing of a trial according to the| |summons procedure.<br> It was not given to the| |Magistrate to postpone the case and hear| |nobody and yet ask the petitioners to| |furnish a bond for good conduct. The| |Magistrate should have made at least some| |effort to get a statement from Brij Mohan| |or Ved Murti Bhatt or any of the witnesses| |named in the challan<br>.Nothing of this| |kind was done. Therefore the Proceedings| |for asking for an interim bond were| |completely illegal.”| **Crl.MC.No.4193 OF 2016 8** 9. It is therefore, indubitably clear from the above legal position that the inquiry has to commence in accordance with law and the learned Magistrate has to record evidence as part of commencement of inquiry in the manner provided for trial of summons cases. Execution of interim bond could be insisted only at an appropriate stage when the learned Officer is satisfied that the immediate conclusion of inquiry may be delayed. After hearing both sides and appreciating the true legal position, I am satisfied that the impugned Annexure-A4 order was passed mechanically and without due application of mind and also in flagrant violation of procedure contemplated by S.116 of the Cr.P.C. The order cannot be sustained and it is liable only to be quashed. In the result, this Crl.M.C is allowed, quashing Annexure-A4 order passed u/S.116(3) of Cr.P.C. The matter is remitted back to the Sub **Crl.MC.No.4193 OF 2016 9** Divisional Magistrate, Idukki to reconsider and decide the matter in accordance with law. He will also be at liberty to consider whether there is existing need for proceeding against the petitioner, especially having regard to the fact that the period for which the petitioner was called upon to execute the bond has already run out as if the entire proceedings have become infructuous as on today. Sd/- **T.V.ANILKUMAR, JUDGE** pm **Crl.MC.No.4193 OF 2016 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A COPY OF THE PRELIMINARY ORDER 15/6/2016 ISSUED BY THE 2ND RESPONDENT** **ANNEXURE A2 A COPY OF THE ORDER SHEET IN C.M.P.NO.1931 OF 2015,ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE-II,PEERMADE** **ANNEXURE A3 A COPY OF THE ORDER DATED 7/6/2016 IN C.M.P.NOI.510 OF 2016,ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE-II,PEERMADE ANNEXURE A4 A COPY OF THE DIRECTION DATED 25.3.2016 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENTS EXHIBITS: NIL**