Shahbaz v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 CRL.MC NO. 4341 OF 2023`** ## **`AGAINST THE ORDER IN MC NO.317/2023 OF SUB DIVISIONAL MAGISTRATE, KOZHIKODE`** ## **`- PETITIONER/COUNTER PETITIONER :`** ``` SHAHBAZ,AGED34YEARS S/ONISARAHAMMED,KUTTIYILTHAZHAMHOUSE, MURIYAD,POKUNN,KOZHIKODEDISTRICT-, PIN-673014 ``` ``` BYADVT.S.SARATH ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 THE SUB DIVISIONAL MAGISTRATE KOZHIKODE DISTRICT -, PIN - 673001`** - **`3 THE STATION HOUSE OFFICER KASABA POLICE STATION, KOZHIKODE DISTRICT -, PIN - 673004`** - **`BY SRI.VIPIN NARAYAN, SR.PP`** ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON01.08.2023, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C.No.4341 of 2023 2 ## **ORDER** This petition is filed by the petitioner challenging the order dated 27.04.2023 passed by the Sub Divisional Magistrate Court, Kozhikode invoking the powers under Section 107 of the Code of Criminal Procedure (“the Code” for the sake of brevity). 2. As per the impugned order issued under Section 107 of the Cr.P.C., the learned Sub Divisional Magistrate has called upon the petitioner to attend the Court of the Sub Divisional Magistrate on 03.05.2023 at 11 am to show cause why he shall not be ordered to execute a cash bond for Rs.50,000/ (Rupees Fifty thousand Only) with two solvent sureties for the like sum for keeping the peace for a period of one year under Section 107 of the CrPC. 3. Sri.T.S.Sarath, the learned counsel appearing for the petitioner, submitted that the order passed by the learned Sub Divisional Magistrate cannot be sustained under law. According to the learned counsel, there was absolutely no material before the learned magistrate to show that there was an imminent danger or that there was a likelihood of disturbance of peace and tranquility in the area. It is submitted that one of the crime is under Section 420 of the IPC and the other one is registered for bailable offences. Mere mention of two crimes will not be Crl.M.C.No.4341 of 2023 3 sufficient to confer the learned Magistrate with the power to invoke the jurisdiction under Section 107 of the Code, submits the learned counsel. On the other hand, the learned Magistrate was bound to consider the materials placed before him and to satisfy himself that there are sufficient grounds for invoking the provision and to call up the individual to execute a bond as contemplated therein for a fixed period. Finally, it is contended that the preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance is placed on the Full Bench decision of this Court in **Moidu v. State of Kerala[1]** and the decision of the learned Single Judges in **Peethambaran v. State of Kerala[2]** , **Santhosh M.V. and Others v. State of Kerala[3]** , and **Bejoy K.V. v. State of Kerala[4]** . 4. The learned Public prosecutor, on the other hand, submitted that based on the report received from the Sub Inspector of Police, the Sub Divisional Magistrate was convinced and satisfied that the petitioner herein posed a real threat to public peace and tranquility. Referring to Section 107 of the Code and to its objective, it is submitted that the provision is not intended as a punitive action but a preventive one, and according to him, the learned Magistrate was well justified in acting on such information. > 1 1982 KHC 139 > 2 1980 KLT 876 > 3 2014 (2) KLD 519 > 4 2015 (2) KLD 889 Crl.M.C.No.4341 of 2023 4 5. I have considered the submissions advanced and have perused the records. 6. In the order impugned, it is mentioned that a report has been received by the Sub Inspector of Police that the petitioner is involved in Crime No. 109/2023 and Crime No. 482/2022 of the Kasba Police Station. Clearly, Crime No.482/2022 is one involving offence under Section 420 of the IPC. The nature of the crime, the offense involved, and how the petitioner is likely to endanger the peaceful and tranquil atmosphere of the area are also not mentioned in the order. ## 7. It would be relevant to have a look at Section 107 of the Code. “107. Security for keeping the peace in other cases. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the 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, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.” ## 8. Under Section 107 of the Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace, he may require such person to show cause why he should not be ordered to Crl.M.C.No.4341 of 2023 5 execute a bond with or without sureties, for keeping the peace for a period not exceeding one year. This has to be done in the manner provided in Section 111. That Section requires a Magistrate to make an order in writing, setting forth the substance of the information received. The sine qua non for the institution of a proceeding under the Section is that the Magistrate shall be of the opinion that there is sufficient ground for proceeding. The Magistrate has, under the law, to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility before taking action. For that purpose, the Magistrate, before issuing notice under Section 111, must record the grounds, which, in his opinion, is sufficient for proceeding further. 9. In other words, the provision does not contemplate that the learned Magistrate shall draw up the proceedings automatically whenever information of the kind mentioned in the section is received by the Magistrate. Any action can be initiated only if the Magistrate is satisfied and if he is of the 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 received by him. The prior formation of the opinion by the Magistrate under Section 107 gives him jurisdiction to proceed further under Section 111 of the Code. Though the initiation of the proceedings depends on the Magistrate's subjective satisfaction and in his discretion, there should be cogent Crl.M.C.No.4341 of 2023 6 materials before him on which a reasonable opinion for initiating the action could be formed. ( See **Peethambaran** ) ## 10. In **Madhu Limaye and another v. SDM, Monghyr[5]** , the Apex Court, in para 36 of the judgment, had cautioned the Executive Magistrate exercising powers under Section 107 in the following manner:- "We have seen the provisions of Sec. 107. That section says that action is to be taken in the manner here-in-after provided, and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved, and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of general public." ## It was further observed in Para 37 as under:- "Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquility at his hands. Although the section speaks of the ''substance' of the information, it does not mean the order should not be full. It may not repeat the information but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word ''substance' means the essence of the most important parts of the information." 11. In the absence of any material rendering a breach of peace probable, a Magistrate is not justified in calling upon the parties to show cause why he should not enter into recognizances and on his failure to make an order under the section (see **Moidu v. State of Kerala)[6]** . It is > 5 AIR 1971 SC 2486 > 6 1982 KLT 578 Crl.M.C.No.4341 of 2023 7 also not open to the Magistrate to draw up proceedings against any person under Section 107 based on vague hunches or general statements. The impugned orders do not state in what way or with reference to what matter the petitioner was likely to commit a breach of peace. There was no tangible evidence before the learned Magistrate that some definite Act is contemplated, which Act, if committed, is likely to cause a breach of peace. Annexure-1 order does not fulfill the requirement under Section 111 and discloses total non-application of mind. 12. 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 preventing the commission of offenses involving a 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 offense, it is essential that the power should be exercised strictly in accordance with the law. As such, in view of such blatant abuse of the powers under Sections 107 and 111 Cr. P.C., it is only just and proper, to secure the Crl.M.C.No.4341 of 2023 8 interest of justice and to prevent abuse of powers of the Court, that the Annexure-1 order be quashed. The petition is allowed. All further proceedings against the petitioner in M.C.No.317/2023 on the file of the Sub Divisional Magistrate Court, Kozhikode, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** SMA Crl.M.C.No.4341 of 2023 9 ## **`APPENDIX OF CRL.MC 4341/2023`** ## **`PETITIONER ANNEXURES :-`** ``` AnnexureA1THETRUECOPYOFTHEORDERINM.C317/2023OF THEHON'BLESUBDIVISIONALMAGISTRATECOURT, KOZHIKODEDATED27/4/2023 AnnexureA2THETRUECOPYOFTHECOMPLIANTDATED18/08/2022 AnnexureA3ATRUECOPYOFCOMMUNICATIONFROMTHEACPDATED 29-09-2022 ```