Sreejith S. and Varghese @ Bestin v. State of Kerala and The Sub Inspector of Police, Nenmara Police Station, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945** **CRL.MC NO. 2525 OF 2023** **CRIME NO.543/2022 OF NENMARA POLICE STATION, PALAKKAD AGAINST THE ORDER/JUDGMENT MC 33/2023 OF SUB DIVISIONAL** ## **MAGISTRATE,PALAKKAD** ## **PETITIONER/COUNTER PETITIONER:** 1 SREEJITH.S, S/O.SIVADASAN, AGED 22 YEARS KOLLARATHI HOUSE, THIRUVAZHIYAD VILLAGE, CHITTUR TALUK, THIRUVAZHIYAD.P.O., PALAKKAD DISTRICT, PIN - 678510 2 VARGHESE @ BESTIN AGED 24 YEARS S/O.ELDHOS.P.K., PALATHINKAL HOUSE, KAIRADY.P.O., KAIRADY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678510 BY ADV MINI.V.A. ## **RESPONDENTS/STATE AND COMPLAINT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE SUB INSPECTOR OF POLICE NENMARA POLICE STATION, PALAKKAD, PIN - 678508 BY ADV. SMT.SREEJA. V., PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2525 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.No.2525 of 2023 ---------------------------------------------Dated this the 21[st] day of September, 2023** ## **ORDER** This Crl.M.C is filed to quash M.C.No.33/2023 on the file of the Sub Divisional Magistrate, Palakkad. Annexures A1 & A2 are the orders received by the petitioners from the Sub Divisional Magistrate under Section 111 Cr.P.C. It is the case of the petitioners that Annexures A1 & A2 notices issued by the learned Magistrate does not contain the substances of the information received by the learned Magistrate for arriving at the satisfaction contemplated under Section 107 Cr.PC. The counsel relied the judgments of this Court in **Girish P. and others v. State of Kerala and** Crl.M.C.No.2525 of 2023 3 **another** (2009 (4) KHC 929), **Santhosh M.V and others v. State of Kerala and others** (2014 KHC 522) and also **Bejoy K.V v. State of Kerala and Another** (2015 (5) KHC 507). 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 3. A perusal of Annexures A1 & A2 notices would not show that the above orders are passed in tune with Section 107 r/w Section 111 Cr.PC. In **Girish P** 's case (supra), the mandate of Section 111 and Section 107 Cr.P.C 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 Crl.M.C.No.2525 of 2023 4 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 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 Crl.M.C.No.2525 of 2023 5 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 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 Crl.M.C.No.2525 of 2023 6 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 irresponsible for any such alleged acts.” In the light of the above dictum, I am of the considered opinion that Annexures A1 & A2 orders are Crl.M.C.No.2525 of 2023 7 not in tune with Section 111 Cr.P.C and 107 Cr.P.C. It is only stated that a report is received from the Nenmara Police Station against the counter petitioners. The substances of report received and the details of the case, if any, pending against the petitioners are not narrated in the notices. Therefore, I am of the considered opinion that Annexures A1 & A2 proceedings are unsustainable. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners based on Annexures A1 & A2 are quashed. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.2525 of 2023 8 ## **APPENDIX OF CRL.MC 2525/2023** PETITIONER ANNEXURES |ANNEXURE A1|TRUE COPY OF THE SHOW CAUSE NOTICE| |---|---| ||ISSUED TO THE 1ST PETITIONER DATED| ||14.02.2023.| |ANNEXURE A2|TRUE COPY OF THE SHOW CAUSE NOTICE| ||ISSUED TO THE 2ND PETITIONER DATED| ||14.02.2023.| |ANNEXURE A3|THE TRUE COPY OF THE COMPLAINT| ||PREFERRED BY THE FIRST PETITIONER| ||DATED<br>18-11-2022<br>BEFORE<br>THE| ||SUPERINTENDENT OF POLICE, PALAKKAD.| |ANNEXURE A4|THE TRUE COPY OF THE FIR DATED 10-10-| ||2022 IN CRIME NO.543/2022 OF NENMARA| ||POLICE STATION.| |ANNEXURE A5|THE TRUE COPY OF THE ORDER DATED 11-| ||11-2022 IN B.A.NO.8611/2022 OF THIS| ||HONOURABLE COURT.| |ANNEXURE A6|THE TRUE COPY OF THE ORDER DATED 30-| ||11-2022 IN B.A.NO. 9298/2022 OF THIA| ||HONOURABLE COURT.| |RESPONDENTS|EXHIBITS<br>:NIL| ||//TRUE COPY//<br>PA TO JUDGE|