Shaji Kurian v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ## **`CRL.MC NO. 8859 OF 2023`** ## **`AGAINST THE ORDER/JUDGMENT MC 12/2023 OF SUB DVL.MAGISTRATE,PALA`** ## **`PETITIONER/RESPONDENT IN CRL.M.C:`** ``` SHAJI KURIAN AGED 54 YEARS S/O. KURIAN (LATE), PUTHENPURAKKAL (H), MUTTUCHIRA P.O, KOTTAYAM, PIN - 686613 BY ADVS. J.JULIAN XAVIER FIROZ K.ROBIN ANIES MATHEW ROY JOSEPH NIRMAL KURIEN EAPEN MARTIN K.J. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP. BY STATION HOUSE OFFICER KADUTHURUTHY POLICE STATION KADUTHURUTHY P.O, PIN - 686604 2DISTRICT POLICE CHIEF DISTRICT POLICE OFFICE, COLLECTORATE P.O, KOTTAYAM, PIN - 686002 3SUB DIVISIONAL MAGISTRATE PALA, PIN - 686575 4APPACHAN ALIAS KURIAKKOSE S/O KURIAN, PUTHENPURACKAL (H) MUTTUCHIRA P.O, KOTTAYAM, PIN - 686613 5AJIN KURIAN S/O KURIAN PUTHENPURACKAL (H), MUTTUCHIRA P.O, KOTTAYAM, PIN - 686613 ``` ## **`OTHER PRESENT:`** ``` SMT SREEJA V, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8859 OF 2023 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J.** ## **--------------------------------** Crl.M.C. No.8859 of 2023 ## **----------------------------------------------** Dated this the 10[th] day of November, 2023 ## **O R D E R** This Criminal Miscellaneous Case is filed to quash the proceedings in MC 12/2023 on the file of the Sub Divisional Magistrate, Pala. Annexure A15 is the order passed by the Sub Divisional Magistrate, Pala. The above case is initiated under Section 111 of Cr.P.C. It is the case of the petitioner that Annexure A15 notice issued by the Sub Divisional Magistrate does not contain the substances of the information received for arriving at the satisfaction contemplated under Section 107 of Cr.P.C. 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)** . ``` CRL.MC NO. 8859 OF 2023 ``` ``` 3 ``` 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. A perusal of Annexure A15 notice would not show that it is an order passed in tune with Section 107 r/w Section 111 Cr.PC. In **Girish P'** 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 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 ``` CRL.MC NO. 8859 OF 2023 ``` ``` 4 ``` 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.” ## 4. 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 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 ``` CRL.MC NO. 8859 OF 2023 ``` ``` 5 ``` 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 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 ``` CRL.MC NO. 8859 OF 2023 ``` ``` 6 ``` irresponsible for any such alleged acts.” 5. In the light of the above dictum, I am of the considered opinion that Annexure A15 is not an order in tune with Section 111 Cr.PC and 107 Cr.PC. No case details are mentioned in the order except a sentence stating that “report of the Station House Officer, Kadathuruthy is received”. 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 Annexure A15 proceedings is unsustainable. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioner based on Annexure A15 are quashed. Sd/- ## **P.V.KUNHIKRISHNAN** ska ## **JUDGE** ``` CRL.MC NO. 8859 OF 2023 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 8859/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`TRUE COPY OF THE PLAINT DATED 29.07.2020 IN`| ||`OS NO.136/2020 PENDING BEFORE THE MUNSIFF`| ||`COURT, VAIKOM`| |`Annexure A2`|`TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH`| ||`COUNTER CLAIM DATED 02/2021 IN OS NO.136/2020`| |`Annexure A3`|`TRUE COPY OF THE SURVEY COMMISSION REPORT`| ||`DATED 27.06.2022 IN IA NO.9/2021 IN OS`| ||`NO.136/2020 OF THE MUNSIFF COURT VAIKOM`| |`Annexure A4`|`TRUE COPY OF THE ORDER DATED 05.01.2023 IN IA`| ||`14/2022 IN OS NO.136/2020`| |`Annexure A5`|`TRUE COPY OF THE INFORMATION RECEIVED UNDER`| ||`RTI ACT DATED 13.06.2023 FROM THE`| ||`KADUTHURUTHY POLICE STATION`| |`Annexure A6`|`TRUE COPY OF THE FIR IN CRIME NO.980/2020`| ||`DATED 09.10.2020 REGISTERED BY THE SHO,`| ||`KADUTHURUTHY`| |`Annexure A7`|`TRUE COPY OF THE FIR IN CRIME NO. 1227/2021`| ||`REGISTERED ON 18.08.2021 BY THE SHO,`| ||`KADUTHURUTHY`| |`Annexure A8`|`TRUE COPY OF THE FIR IN CRIME NO.292/2021`| ||`REGISTERED BY THE SHO, KADUTHURUTHY`| |`Annexure A9`|`TRUE COPY OF THE FIR NO. 68/2023 DATED`| ||`10.01.2023 REGISTERED BY THE SHO,`| ||`KADUTHURUTHY`| |`Annexure A10`|`TRUE COPY OF THE FIR IN CRIME NO.1183/2020`| ||`DATED 18.12.2020 REGISTERED BY THE SHO,`| ||`KADUTHURUTHY`| |`Annexure A11`|`TRUE COPY OF THE FIR IN CRIME NO. 294/2021`| ||`REGISTERED ON 25.03.2021 BY THE SHO,`| ||`KADUTHURUTHY`| |`Annexure A12`|`TRUE COPY OF THE FIR IN CRIME NO.1252/2021`| ||`REGISTERED BY THE SHO, KADUTHURUTHY`| |`Annexure A13`|`TRUE COPY OF THE FIR NO.67/2023 REGISTERED BY`| ||`THE SHO, KADUTHURUTHY ON 10.01.2023`| |`Annexure A14`|`CERTIFIED COPY OF THE SUMMONS DATED`| ||`10.02.2023 ISSUED BY THE 2ND RESPONDENT`| |`Annexure A15`|`CERTIFIED COPY OF THE PRELIMINARY ORDER IN MC`| ``` CRL.MC NO. 8859 OF 2023 ``` ``` 8 ``` ``` 12/2023 DATED 10.02.2023 ISSUED BY THE 2ND RESPONDENT ``` ``` Annexure A16TRUE COPY OF THE INFORMATION RECEIVED BY THE PETITIONER DATED 07.06.2023 FROM THE OFFICE OF THE 2ND RESPONDENT ```