Shihab v. State of Kerala

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV FRIDAY,THE26[TH]DAYOFMAY2023/5THJYAISHTA,1945 CRL.MCNO.3872OF2023 ``` ## `PETITIONER/COUNTER PETITIONER:` ``` SHIHAB AGED38YEARS S/O.MUHAMMEDALI,MEENTHARAKKALHOUSE, - THAIKKATTUKARAP.O,ALUVA,ERNAKULAM,PIN683106. BYADVS. E.A.HARIS M.A.AHAMMADSAHEER MUHAMMEDYASIL ``` ## `RESPONDENTS/STATE & COMPLAINANT` **`:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031. 2SHOOFPOLICE ALUVAEASTPOLICESTATION,ERNAKULAMRURAL, - KERALA,PIN683101. 3SUPERINTENDENTOFPOLICE - ALUVA,ERNAKULAMRURAL,KERALA,PIN683101. ``` ``` SRI.VIPINNARAYAN,SRPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 26.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` 2 Crl.M.C No.3872 of 2023 ## **ORDER** The proceeding initiated by the Sub Divisional Magistrate, Fort Kochi, under Section 107 of the Code of Criminal Procedure against the petitioner herein is under challenge in this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity). 2. As per the impugned order, the petitioner has been directed to appear before the said officer in person at 11 a.m. on 16.05.2023 and to show cause why he should not be required to enter into a bond of Rs.1,00,000/- with two solvent sureties for the like sum for keeping peace for a term of one year. 3. Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. 4. The learned counsel would assail the order on various grounds. It is submitted that the substance of the accusation has not been stated in the Annexure-A1 order. Though it is stated that the Sub Inspector of the Aluva Police Station has submitted a report that the petitioner has involved himself in Crime Nos.705/2020 & 409/2020 of the Aluva Police Station, the order is deafeningly silent as to the other details of the crime. The order is also silent as regards the relevant factors which influenced the mind of the 3 Crl.M.C No.3872 of 2023 Magistrate to form an opinion that the petitioner is likely to disturb peace and tranquility in a particular locality, and in order to prevent the same, it is necessary to take preventive action against him. It is urged that the materials before the learned Magistrate were thoroughly inadequate to arrive at the requisite satisfaction. 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** [1982 KHC 139: 1982 KLT 578] and the decision of the learned Single Judges in **Peethambaran v. State of Kerala** [1980 KHC 239:1980 KLT 876: ILR 1980 (2) Ker. 589], **Santhosh M.V. and Others v. State of Kerala** [2014 (2) KLD 519], and **Bejoy K.V. v. State of Kerala** [2015 (2) KLD 889]. 5. The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Aluva Police Station, to the effect that the petitioner was continuously involving himself in criminal offenses, causing a breach of peace and public tranquility in the area that preventive action was initiated. 6. I have perused the materials on record as well. 7. 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 4 Crl.M.C No.3872 of 2023 require such person to show cause why he should not be ordered to 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 111, must record the grounds, which, in his opinion, is sufficient for proceeding further. 8. In **Madhu Limaye and another v. SDM, Monghyr** [AIR 1971 SC 2486], 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 5 Crl.M.C No.3872 of 2023 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." 9. On perusing Annexure-A1 order, it is evident that the said order is passed under Section 111 of the Cr.P.C. As a matter of fact, as and when an Executive Magistrate receives information that any person is likely to commit a breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of the opinion that there is sufficient ground for proceeding, the Magistrate may require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year. I find that the Sub Divisional Magistrate has disregarded the statutory mandate and has invoked powers vested on him in a callous manner. The fact that the petitioner was involved in four crimes could not have been taken as the basis to issue a preventive order against the petitioner herein (see 6 Crl.M.C No.3872 of 2023 **Santhosh M.V. and others v. State of Kerala** [2014 (3) KLT 837]; **Girish P and Others v. State of Kerala** [2009 (4) KHC 929]). In the absence of any evidence rendering a breach of peace probable, a Magistrate is not justified in calling upon 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** [1982 KLT 578]). It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-A1 order does 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 A1 order does not fulfill the requirement under Section 111 and reveals the total non-application of mind. 10. 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 prevent commission of offences involving 7 Crl.M.C No.3872 of 2023 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 offence, it is essential that the power should be exercised strictly in accordance with the law. 11. 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 interest of justice and to prevent abuse of powers of the Court, that Annexure-A1 order be quashed. The petition is allowed. All further proceedings against the petitioner in M.C.No.313 of 2021 on the file of the Sub Divisional Magistrate Court, Fort Kochi, are quashed, Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** Sru 8 Crl.M.C No.3872 of 2023 ## `APPENDIX OF CRL.MC 3872/2023` ## `PETITIONER’S ANNEXURES` ``` AnnexureA1TRUECOPYOFTHEORDERDATED27.04.2023IN M.C.NO.313/2021ISSUEDBYTHESUBDIVISIONAL MAGISTRATEFORT-KOCHI. AnnexureA2TRUECOPYOFTHEFIRDATED02-05-2020IN CRIMENO.705/2020OFALUVAEASTPOLICE STATION. AnnexureA3TRUECOPYOFTHEFIRDATED05-05-2020IN CRIMENO.409/2020OFEDATHALAPOLICESTATION. AnnexureA4TRUECOPYOFTHEFIRDATED02-05-2020IN CRIMENO.704/2020OFALUVAEASTPOLICE STATION. ```