SHAJAHAN v. State of Kerala & Another

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 CRL.MC NO. 6422 OF 2021 [AGAINST THE ORDER IN MC NO.594/2021 ON THE FILE OF THE COURT OF SUB DIVISIONAL MAGISTRATE, FORTKOCHI] ## PETITIONER/COUNTER PETITIONER: SHAJAHAN AGED 49 YEARS S/O.SHAMSUDHEEN, POTTEKKATT HOUSE, EDAYAKUNNAM, CHERANELLOORE VILLAGE, SOUTH CHITTOOR P.O. BY ADV T.K.AJITHKUMAR (VALATH) ## RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,PIN - 682 031. 2 THE INSPECTOR OF POLICE CHERANELLOORE POLICE STATION, PIN - 682 034. BY SRI. VIPIN NARAYAN, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.05.2022, THE COURT ON 25.7.2022 PASSED THE FOLLOWING: CRL.MC No.6422 of 2021 2 ## O R D E R The petitioner is the counter petitioner in M.C.No.594/2021 on the file of the Sub Divisional Magistrate Court, Fort Kochi. This Crl.MC is filed by him challenging Annexure-1 order passed by the learned Sub Divisional Magistrate under Section 111 of the Code of Criminal Procedure (Cr.PC) requiring the petitioner to show cause why he should not be ordered to execute a cash bond for Rs.1,00,000/-(Rupees One Lakh only) with two solvent sureties for the like sum amount for keeping the peace for a period of one year under Section 107 Cr.PC. 2. Heard Sri.T.K.Ajithkumar, the learned counsel for the petitioner, Sri. Vipin Narayan, the learned Public Prosecutor for respondents 1 and 2. CRL.MC No.6422 of 2021 3 3. The contention of the petitioner is that Annexure-1 is not legally sustainable because the substance of the information provided in the aforesaid order is not adequate, and it does not reveal the necessary ingredients which were to be provided in the above mentioned order. It is pointed out that, apart from mentioning certain crime numbers, no details of the allegations and the role of the petitioner in the crimes above were not mentioned in the above mentioned order. Therefore, it is contended that the aforesaid order is bad in law as the impugned order does not disclose the details of the substance of the information based on which the order is passed. 4. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that, even going by the contents of Annexure-1, he is involved in several crimes and therefore, no interference is warranted. CRL.MC No.6422 of 2021 4 5. I have perused the records and heard rival contentions. On perusal of Annexure-1 order, it can be seen that about ten crime numbers have been mentioned in the aforesaid order. However, it is discernible that apart from the crime numbers, the details of the aforesaid crimes, such as offences committed, the role of the petitioner etc., are not mentioned therein. Apart from the above, another crucial aspect to be noticed is that, even though the Annexure-1 order is seen to have been passed on 22.11.2021, the crime numbers referred to therein are old crime numbers ranging from 2014-2020. Except for crime No.307/2020, all the other crimes are of the year 2017 or before that. Therefore, it was contended that the same could not be relied upon to invoke the powers of the learned Magistrate under Section 107, as what is relevant for the purpose of initiation of proceedings is an imminent danger to the peace and tranquility in the locality. Since most of the CRL.MC No.6422 of 2021 5 offences are pertaining to incidents that occurred years ago, such an opinion cannot be normally formed by the learned Magistrate, contends the learned counsel for the petitioner. 6. On perusal of the records, I find some force in the aforesaid contentions. First of all, the substance of information as mentioned above in the impugned order does not contain the details of the crimes. The proceedings under Section 107 of Cr.PC is preventive in nature and cannot be used as a punitive measure. The period during which the aforesaid order would be in force is limited to one year. Apart from the above, Section 116(4) of Cr.PC) contemplates that the proceedings under Section 107 shall be completed within six months. In my view, the fixation of a specific timeline, as mentioned above in the statute, is a clear indication that the measures proposed to be taken under the said provisions are to address an imminent danger caused by the actions of the ## CRL.MC No.6422 of 2021 6 counter petitioner. Therefore, the reasons which prompted the authorities to initiate such action must also reflect the imminent threat involved in the acts of the petitioner, which occurred recently. However, it does not mean that criminal proceedings initiated against the petitioner years ago cannot be a reason at all for initiating the proceedings. On the other hand, when the Sub Divisional Magistrate was placed with necessary materials indicating an imminent danger from the recent acts of the counter petitioner, to consider the potential threat of the counter petitioner, such past conduct can be taken into consideration along with other materials. In other words, in the absence of any recent events of the illegal act which causes a threat to the peace of the locality from the part of the counter petitioner, no proceedings can be initiated by merely relying upon the crimes which were allegedly committed long ago. While arriving at the said conclusion, ## CRL.MC No.6422 of 2021 7 the Sub Divisional Magistrate can look into the history of the counter petitioner to form an opinion as to the potential threat of the counter petitioner to the peace and tranquility of the locality. In this case, all the offences are very old except for one. Even in respect of the recent crime, no details of the nature of allegations are mentioned. Therefore, those materials by themselves would not enable the Sub Divisional Magistrate to form an opinion as to the imminent threat from the part of the petitioner to the peace in the locality. 7. In Henry Vijayakumar v. State of Kerala [2009(4) KLT 495] , this Court considered the details to be taken into consideration while invoking the powers under Section 107 Cr.PC. In paragraph 7 of the said judgment, it was observed as follows: _“7. Annexure III order does not disclose the contents of the report based on which the Sub_ CRL.MC No.6422 of 2021 8 _Divisional Magistrate expressed satisfaction to invoke the power under S.107 of Code of Criminal Procedure requiring petitioner to appear and show cause why he shall not execute a bond. It does not show what was the allegation raised in the complaint against the petitioner, based on which the Sub Divisional Magistrate found that it is necessary to require the petitioner to execute a bond. As declared by the Apex Court in Madhu Limaye's case (supra), when it is under Annexure III foundation, the entire case is built up, Sub Divisional Magistrate is bound to disclose the entire facts so that petitioner could resist the proceedings when he appears. Apex Court held:_ _"The procedure begins with S.112. It requires that the Magistrate acting under S.107 shall make an order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. 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 bodily but it must give proper notice of what has moved the Magistrate_ CRL.MC No.6422 of 2021 9 _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." As found by this Court in Mukthar's case (supra), when Annexure III order does not disclose any detail, which is mandatory, it can only be quashed.”_ 8. While taking into account the contents of Annexure-1 order, in the light of the principles laid down in the aforesaid judgment, I am of the view that the substance of information as furnished in Annexure-1 is not sufficient to form an opinion as to the imminent danger caused by the petitioner to public peace and tranquility in the locality. As rightly pointed out by the learned counsel for the petitioner, apart from merely mentioning the crime numbers, no details were seen produced. Even the crime numbers mentioned are pertaining to old cases, and those would not by themselves indicate any imminent threat to public peace and tranquility in that locality by the petitioner herein. In such circumstances, I am of CRL.MC No.6422 of 2021 10 the view that the proceedings initiated against the petitioner consequent to Annexure-1 are not in tune with the statutory mandate as contemplated under Section 107 and 111 of Cr.PC. In such circumstances, proceedings pursuant to the same are an abuse of the process of law. In the result, Crl.M.C. is allowed. Annexure-1 order passed by the Sub Divisional Magistrate, Fort Kochi and all further proceedings pursuant thereof are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.6422 of 2021 11 ## APPENDIX OF CRL.MC 6422/2021 PETITIONER’S ANNEXURE: Annexure 1 THE ORDER OF SUB DIVISIONAL MAGISTRATE DATED 22/11/2021 ISSUED TO THE PETITIONER.