Sivankutty Nair v. State of Kerala and Sub Inspector of Police, Pothencode Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 12TH DAY OF MARCH 2014/21ST PHALGUNA, 1935** **Crl.MC.No. 664 of 2012 --------------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 221/2009 of PRL.MUNSIFF COURT, NEDUMANGAD DATED 20-07-2009 CRIME NO. 33/2011 OF POTHENCODE POLICE STATION , THIRUVANANDAPURAM** **------------** **PETITIONER(S):** **----------------------** **SIVANKUTTY NAIR, S/O.LATE RAMAKRISHNA PILLAI, LAKSHMI NIVAS, MYLADUMMUGHAL, POTHANCODU P.O., VEMBAYAM, THIRUVANANTHAPURAM.** **BY ADVS.SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.ANEESH JAMES SRI.S.SREEKUMAR (SR.)** **RESPONDENT(S): -------------------------** **1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. THE SUB INSPECTOR OF POLICE,** **POTHENCODE POLICE STATION, PIN-695584, (CRIME NO.33/2011 OF POTHENCODE POLICE STATION).** **BY PUBLIC PROSECUTOR SRI.REGI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 664 of 2012** ## **--------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **-------------------------------------** **ANNEXURE I TRUE COPY OF OS.102/2009 OF MUNSIFF'S COURT, NEDUMANGAD.** **ANNEXURE II TRUE COPY OF OS.221/2009 OF MUNSIFF'S COURT, NEDUMANGAD.** **ANNEXURE III TRUE COPY OF ORDER IN IA.1393/2009 IN OS.221/2009 OF MUNSIFF'S COURT, NEDUMANGAD.** **ANNEXURE IV TRUE COPY OF INTERIM ORDER IN WPC.7814/2009 DATED 12/3/2009 OF THIS HON'BLE COURT.** **ANNEXURE V TRUE COPY OF JUDGEMENT IN WPC.7814/2009 DATED 27/3/2009 THIS HON'BLE COURT.** **ANNEXURE VI TRUE COPY OF ORDER DATED 1/8/2011 PASSED BY THE SUB DIVISIONAL MAGISTRATE, TRIVANDRUM.** **ANNEXURE VII TRUE COPY OF WRITTEN OBJECTION FILED BY THE PETITIONER BEFORE THE SUB DIVISIONAL MAGISTRATE, TRIVANDRUM.** **ANNEXURE VIII TRUE COPY OF FIR IN CRIME NO.33/2011 OF POTHENCODE POLICE STATION.** - **ANNEXURE IX TRUE COPY OF STATEMENT SUBMITTED BY THE SUB INSPECTOR OF POLICE, POTHENCODE POLICE STATION.** ## **RESPONDENTS' EXHIBITS** **-------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No. 664 of 2012 ---------------------------------------------Dated this the 12[th] day of March, 2014 ## **ORDER** This petition is filed u/s.482 Cr.P.C. to quash Annexures-VI and VIII in Crime No.33/2011 of Pothencode Police Station, which is pending before Sub Divisional Magistrate, Thiruvananthapuram u/s.107 Cr.P.C., by invoking the inherent jurisdiction u/s. 482 Cr.P.C. 2. The allegation in Anneuxre-VIII is that the Sub Inspector of Police, Pothencode informed the Executive Magistrate that the petitioner committed breach of peace or disturbed the public tranquillity by committing wrongful act in the locality. He may also probably occasion to disturb the public tranquillity and breach of peace and if proceedings u/s.107 is not taken against him, he will commit several offences. Therefore, S.I. Of Police, Pothecode registered Crl.M.C.No.664/12 2 Annexure-VIII FIR against the petitioner. Aggrieved by that, the petitioner approached this Court to quash Annexures-VI and VIII on the ground that it was initiated without conducting any proper enquiry as contemplated under the Code of Criminal Procedure. Hence, Annexures-VI and VII are to be quashed. 3. The learned counsel appearing for the petitioner contended that there was a civil dispute with the adjacent property owners in relation to pathway mentioned in a settlement deed. Civil suit O.S.No.102/2009 and 221/2009 are pending before Munsiff's Court, Nedumangad. According to him, for taking advantage of the above suit, influencing the police, the above proceedings was initiated against the petitioner. Therefore, there is a violation of mandatory provisions. The learned counsel relied decisions of this Court in _**Muhammedkutty @ Thomas**_ v. _**State of Kerala**_ [ 2007(2) KHC 581] and _**Henry Vijayakumar**_ v. _**State of Kerala**_ [2009 KHC Crl.M.C.No.664/12 3 5092]. 4. The learned Government Pleader appearing for the respondents admitted that only due to non-cooperation of the petitioner, the enquiry was not completed within six months. In such a situation, the petitioner cannot say that there is violation of Section 116(6) of Cr.P.C. 5. According to Section 107 Cr.P.C., when an Executive Magistrate receives information that any person is likely to commit an 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 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 of one year. When such an order u/s.107 is made, if it necessary to require any person to show cause and Crl.M.C.No.664/12 4 shall make an order in writing setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be enforced and the number, character and class of sureties required are to be intimated to the concerned person. When any person in respect of whom such order is issued, is present in Court, it shall read over to him or if he desires, the substance thereof shall be explained to him. If such person is not present as directed, the Magistrate shall issue summons requiring him to appear or when such person is in custody issue a warrant directing the officer, in whose custody he is, to bring him before the Court. 6. When an order U/s.111 to 113 is made, the Magistrate shall proceed to enquire into the truth of the information upon which the action has been taken and he shall take further evidence as may be necessary. The enquiry mentioned U/s.116 shall be made in the manner prescribed for conducting trial and recording of evidence in 5 Crl.M.C.No.664/12 summons cases. No enquiry was conducted as stipulated U/s.116 (6). There is a mandatory provision provided U/s.116(6) of the Code. According to Section 116 (6), the enquiry shall be completed within a period of six months from the date of its commencement and if such enquiry is not so completed, the proceedings under this Chapter shall stand terminated on expiry of the said period. If the enquiry is not completed within a period of six months, special reasons shall be recorded in writing by the Magistrate. 7. Here, no such reasons are recorded by the learned Magistrate, after initiating action as per Annexures-A1 and A2. It is clear from the above Section that sub section 6 provides a time limit for completing the proceeding by an executive magistrate, when he starts his enquiry as per 116. The object of the section is to prevent breach of peace and proceedings is to be completed within a reasonable time of six months. Therefore, it is Crl.M.C.No.664/12 6 mandatory that the first part of the enquiry must be completed within a period of six months. A special power has to be given to the magistrate under sub section 6 that if the enquiry is not completed within a period of six months, he shall record the special reasons for to do so. If no final orders are passed upto six months of the commencement of enquiry or no special reasons are mentioned by the magistrate to extend the period of the limitation, the proceedings will automatically come to an end. Apex Court in _**Madhu Limaye**_ v. _**Sub Divisional Magistrate, Monghyr and others**_ [1970(3) SCC 746] in paragraph 42 held as follows: “42. In our opinion the words of the section are quite clear. As said by Straight J. in Emperor v, Babua [ILR 6 All 132] the order under Section 112 is on hearsay but the inquiry under Section 117 is to ascertain the truth of the necessary information. Subsection (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary and in default it is necessary to put the person in custody. Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and Crl.M.C.No.664/12 7 suspicion, it is necessary to put a strict construction upon the powers of Magistrate. The facts must be of definite character. In Nafar Chandra pal v. The King Emperor there was only a petition and a report and there were not found sufficient material. In some of the cases before us no effort was made by the Magistrate to inquire into the truth of the allegations. The Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely one-sided. It cannot be described as an inquiry with in an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to aske for an interim bond or placing the person in custody in default. In an old case reported in A.D. Danne v. Hemchandra a Full Bench of the Calcutta High Court went into the matter. The case arose before the present Code of Criminal Procedure and therefore, there was no provision for an interim bond. But what Sir Barnes Peacock C.J. Said applies to the changed law also not only with regard to the ultimate order but also to the interim order for a bond. The section even as it is drafted today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore, it is not open to a Magistrate to adjourn the case and Crl.M.C.No.664/12 8 in the intervel to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed.” ## The above decision was followed by the Division Bench of this Court in _**Muhammedkutty**_ v. _**State of Kerala**_ [2007 (2) KLT 820 held as follows: (para 1,7 and 8) “When an inquiry under S.116 of the Code of Criminal Procedure commences is the question referred by a learned single Judge of this court to be decided by the Division Bench. In Mathukutty v. State of Kerala (1995 (1) KLT 742) it was held that the inquiry will commence only from the date of recording of evidence. Another learned single Judge in Saju Varghese and Ors v. State (2005 (1) KLD (Cri.) 570) held that the inquiry commences for the purpose of S.116 (6) from the date of appearance of the counter petitioner before the Sub Divisional Magistrate and not from the date of recording of evidence. S.116(6) Cr.P.C. provides that inquiry under S.116 shall be completed within a period of six months from the date of commencement and on the expiry of six months, the said period shall stand terminated unless for special reasons to be recorded in writing the Magistrate otherwise directs. Chapter VIII of Cr.P.C. (Ss.106 to 124) provides preventive measures for keeping public peace etc. and are aimed at persons who are potential danger to the general public by reason of their likelihood of commission of certain offences by them. Therefore, they can be directed to execute a bond as security for keeping peace and for good behaviour and on default of execution of Crl.M.C.No.664/12 9 bond, results in the detention. Even though, in appearance, it as an administrative order as held in Madhu Limaye & Anr. v. Sub Divisional Magistrate, Monghyr & Ors. (AIR 1971 SC 2486), it is really judicial in character, Ss.106 to 110 details circumstances when a person can be directed to execute a bond or security. Ss.111 to 124 provides the procedure according to which security and execution of bond can be asked for keeping peace or for good behaviour. S.111 obliges that the Magistrate acting under S.107 to 110 to require such persons to show cause by order in writing setting forth the substance of the information received, the amount of 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 above provisions are mandatory in character failing which the proceedings will become invalid as held in Nareshkumar Jain & Anr. State of UP & Ors. (1993 Crl. L.J. 1352- All.). Before issuing an order of show cause notice under S.111, Magistrate shall apply his mind and shall consider the police report and shall be satisfied that a prima facie case has been made out to take action under S.107 to 110 (See: Babulal & Anr. v. State of M.P. (1991 Crl.L.J. 786). When a person is called upon to show cause why he should not be required to give security for good behaviour, he must be ready with his evidence when he appears in obedience to the notice unless he obtains an adjournment for reasonable cause. The notice issued to the person must accompany the preliminary order under S.111 S.112 prescribes the procedure when such person is present in court. The Magistrate is bound to read over to him the substance of the order/show cause notice passed against him and it shall be explained to him. If he so desires, S.113 enables the Magistrate to summon directing him to appear before the Magistrate. Proviso to S.113 enables the Crl.M.C.No.664/12 10 Magistrate to issue arrest warrant in certain cases and S.114 provides that copy of the order with show cause notice should be delivered along with the warrant. S.115 gives power to dispense with personal attendance and S.116 prescribes the procedure to conduct the inquiry.” Therefore, it is clear that on the expiry of the said period mentioned U/s.116(6), the proceedings stands terminated that is the proceedings come to an end automatically and no order of the Magistrate will subsist thereafter and the Magistrate becomes functus officio. It is well established that in Statutes the period of limitation is prescribed for the completion of proceedings and a power is also given to the concerned court to extend that period, then that power can be exercised in accordance with law within the statutory limit provided thereunder. After the expiry of that period, the Courts does not have any power to extend the limitation for the continuance of the enquiry. Such powers were not invoked or exercised by the learned executive magistrate while he was conducting enquiry as mentioned earlier. In _**Shameer and others**_ v. _**State of Kerala and another**_ Crl.M.C.No.664/12 11 [2008 (4) KHC 177], this Court took the similar view followed by the earlier Division Bench decision. 8. The documents show that there is a civil dispute pending before Munsiff Court, Nedumanagad. AnnexuresI and II are the copies of plaint. Annexure-VI is the copy of the order passed by the Sub Divisional Magistrate, Thiruvananthapuram. Annexure-VII is the objection filed by the petitioner. Annexure-VIII is the FIR and AnnexureIX is the report submitted by the Sub Inspector of Police, Pothencode. Even after the commencement of the proceedings, it was not completed within six months from the date of its commencement. Therefore, analysing the facts and circumstances in this case, I am of the view that this is a fit case to invoke the inherent jurisdiction U/s.482 Cr.P.C. Apex Court in _**Zandu Pharmaceutical Works Ltd**_ V. _**Mohd.Sharaful Haque (**_ 2005)1SCC 122 : (AIR 2005 SC 9), the Supreme Court held as follows: “It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any Crl.M.C.No.664/12 12 proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto”. 8. Therefore, if the proceedings are continued, it amounts to a mere abuse of process of Court. Hence, invoking the inherent jurisdiction, I quash Annexures-VI and VIII. Crl.M.C. is allowed as above. ## **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.664/12 13 Crl.M.C.No.664/12 14