Soman v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935** ## **Crl.MC.No. 961 of 2012 ()** **-------------------------CRIME NO. 45/2012 OF MUVATTUPUZHA POLICE STATION. .......** ## **PETITIONER/ACCUSED:** **-----------------------------------** **SOMAN, AGED 58 YEARS, S/O.SIVASANKARAN NAIR, KURIKKATTU HOUSE, MEKKADAVU. P.O., MUVATTUPUZHA.** ## **BY ADV. SRI.M.B.PRAJITH.** ## **RESPONDENTS/COMPLAINANT:** **----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.** **2. K.J. BABY, S/O.OUSEPH, KAKKANATTU HOUSE, MEKKADAVU. P.O., MUVATTUPUZHA-686 673.** **3. SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA-686 673.** **4. CIRCLE INSPECTOR OF POLICE,** - **MUVATTUPUZHA POLICE STATION, MUVATTUPUZHA-686 673.** ## **5. SUB INSPECTOR OF POLICE,** - **MUVATTUPUZHA POLICE STATION, MUVATTUPUZHA-686 673.** ## **R1 & R3 TO R5 BY PUBLIC PROSECUTOR MR.GITHESH R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 961 of 2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** - **ANNEXURE AI COPY OF THE FIR IN CRIME NO.45/2012 OF THE MUVATTUPUZHA POLICE STATION ON THE FILES OF SUB-DIVISIONAL MAGISTRATE COURT, MUVATTUPUZHA.** **ANNEXURE AII** - **COPY OF THE REPORT FILED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT.** - **ANNEXURE AIII COPY OF THE PLAINT OF O.S. NO.371/2009 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.** - **ANNEXURE AIV COPY OF THE ORDER OF INJUNCTION IN I.A. NO.2191/2009 IN O.S. NO.371/2009.** - **ANNEXURE AV COPY OF THE PLAINT OF O.S.NO.528/2010 PENDING BEFORE THE MUNSIFF COURT, MUVATTUPUZHA.** - **ANNEXURE AVI COPY OF THE MASS PETITION FILED BEFORE THE 5TH RESPONDENT AGAINST THE 2ND RESPONDENT.** - **ANNEXURE AVII COPY OF THE FIR IN CRIME NO.939/2011 OF MUVATTUPUZHA POLICE STATION.** - **ANNEXURE AVIII COPY OF THE COMPLAINT DATED 24/06/2011 FILED BY THE BROTHER OF THE PETITIONER AGAINST THE 2ND RESPONDENT.** - **ANNEXURE AIX COPY OF THE COMPLAINT DATED 08/07/2011 FILED BY THE SISTER OF THE PETITIONER AGAINST THE 2ND RESPONDENT.** - **ANNEXURE AX COPY OF THE COMPLAINT DATED 29/07/2011 FILED BY THE PETITIONER AGAINST THE 2ND RESPONDENT.** **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.961 of 2012 ---------------------------------------------Dated this the 13[th] day of March, 2014 ## **ORDER** This petition is filed U/s.482 of Cr.P.C. to quash Anneuxre-A1 FIR in Crime No.45/2012 of Muvattupuzha Police Station, which is pending before the Sub Divisional Magistrate Court, Muvattupuzha for offence u/s.107 of Cr.P.C., by invoking the inherent jurisdiction. The above case was instituted on the basis of proceedings initiated by 4[th] and 5[th] respondents against the petitioners and his family. There is a civil dispute between the relatives of the petitioner's mother and the 2[nd] respondent and a case is pending before Civil Court. In the circumstances, the petitioner approached this Court to quash the above proceedings on the ground that no proper enquiry was conducted as per Section 116 (6) of Cr.P.C. 2 Crl.M.C.No.961/12 2. The allegation against the petitioner is that the petitioner, who is a resident of Muvattupuzha Police Station limit, is frequently creating problems to the peace and public tranquillity of that area, which is threat to the life and property of the general public. Moreover, the Sub Inspector of Police got reliable information that the petitioner is likely to commit breach of peace and disturb the public tranquillity and he committed a criminal act in the locality. Therefore, he filed Annexures-A1 and AII before the Sub Divisional Magistrate, Muvattupuzha. 3. The learned counsel appearing for the petitioner contended that enquiry was not completed within six months as mentioned u/s.116(6) Cr.P.C. According to the learned counsel for the petitioner, since the petitioner's late mother had filed a civil suit O.S.No.528/2010 before Munsiff Court, Muvattupuzha, by taking advantage of the above suit, influencing the police, foisted a false case against the petitioner. The petitioner is a law abiding Crl.M.C.No.961/12 3 person. The learned counsel relied two decisions in R.P. Kapur v. State of Punjab [AIR 1960 SC 866] and _**Madhavrao Jiwaji Rao Scindia & another**_ v. _**Sambhajirao**_ v. _**Chandrojirao Angre & others**_ [AIR 1988 SC 709] 4. The learned Public Prosecutor strongly opposed the above contention and contended that he is not aware whether the proceedings are completed within six months. 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.961/12 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 or warrant requiring him to appear. 6. The Sub Divisional Magistrate has to conduct an enquiry thereafter about 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 summons cases. No enquiry was conducted as stipulated U/s.116 (6). There is a mandatory provision provided U/s.116(6) of Crl.M.C.No.961/12 5 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 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 Crl.M.C.No.961/12 6 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 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 Crl.M.C.No.961/12 7 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 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 Crl.M.C.No.961/12 8 the wording or arrangement of the sections already noticed.” 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**_ [2008 (4) KHC 177], this Court took the similar view followed by the earlier Division Bench decision. Crl.M.C.No.961/12 9 8. The documents produced by the petitioner show that a civil dispute is pending before Munsiff Court, Muvattupuzha. Annexure-AIV is the order of injunction and Annexure-AV is the copy of plaint. Annexure-A6 is a mas petition filed before the 5[th] respondent against the 2[nd] respondent. Annexure-AVII is the copy of the FIR in Crime No.939/2011 of Muvattupuzha Police Station. AnnexuresAVIII, AIX and AX are the copies of complaints. Eventhough those documents are produced before this Court, there is no document to show that the enquiry was completed within six months from the date of its commencement. Therefore, I am of the view that this is a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C. 9. Hence, invoking the inherent jurisdiction, I quash Annexure-A1 FIR in Crime No.45/2012 of Muvattupuzha Police Station. Crl.M.C. is allowed as above. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.961/12 10 Crl.M.C.No.961/12 11