Stephen P.T. v. State of Kerala and The Sub Inspector of Police, Meppadi

CRL.MC NO. 8637 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 CRL.MC NO. 8637 OF 2023** ## **PETITIONER/S:** STEPHEN.P.T. AGED 33 YEARS S/O.LATE P.E.THOMAS, PULIYANAD HOUSE, MUPPAINAD, RIPPON P.O., VYTHIRI, WAYANAD, PIN - 673576 BY ADVS. G.HARIKRISHNAN (TRIPUNITHURA) SUSAN MATHEW ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE SUB INSPECTOR OF POLICE MEPPADI POLICE STATION, MEPPADI, WAYANAD, PIN - 673577 ## **OTHER PRESENT:** SMT SREEJA V, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8637 OF 2023 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------Crl.M.C. No. 8637 of 2023 -------------------------------------Dated this the 21[st] day of November, 2023** ## **O R D E R** This Crl.M.C. is filed to quash Annexure-A1 proceedings of the Sub Divisional Magistrate, Mananthavady in MC No. 120/2023. It is the case of the petitioner that Annexure-1 does not contain the substances of information received by the 1[st] respondent. It is also the submission of the petitioner that the two cases referred in Annexure-1 are of the same case and in effect, there is only one case registered against the petitioner even as per Annexure-1. It is submitted that since only one case is registered against the petitioner, Annexure 1 proceedings are unsustainable. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. It is true that the Public Prosecutor submitted that CRL.MC NO. 8637 OF 2023 3 the petitioner is included in two cases and it is wrongly mentioned the same crime number twice in Annexure-1. But it is conceded by the Public Prosecutor that the cases mentioned in Annexure-1 are one and the same. In **Santhosh M.V. and others v. State of Kerala and others** [2014 (3) KLT 2837], this Court observed that merely because the counter petitioner was made the accused in a case alone is not sufficient to initiate proceedings against him under Sec. 107 Cr.P.C. 4. The short point to be decided in this case is whether the Sub Divisional Magistrate justified in issuing notice under Sec. 111 Cr.P.C. based on a single case. In **Santhosh's** case (supra), this Court observed that merely because the counter petitioner was made an accused in a case alone is not sufficient to initiate proceedings against him under Sec. 107 Cr.P.C. The relevant portion of the above judgment is extracted hereunder : CRL.MC NO. 8637 OF 2023 4 17. “It is clear from the above order that there is nothing mentioned in the order regarding the reason for the authority to come to a conclusion that the activities of the counter petitioners in that proceedings gave a reasonable apprehension in the mind of the authority that they are likely to cause breach of peace and disrupt public tranquility at a particular time at a particular place which requires immediate intervention of the authorities to prevent such activities and for that purpose, they have to be called upon to enter on a bond to keep good behaviour for a particular period. In that case, the learned Sub Divisional Magistrate has only extracted the wordings in the printed form and extracted the case numbers in which the counter petitioner was made an accused. He had not mentioned as to how far that is relevant for the purpose of considering the question as to whether the counter petitioners have to be called upon to enter on a bond to prevent public tranquility or breach of peace in the locality. As discussed above, the very purpose of initiating proceedings under S.107 of the Code is to prevent public tranquility and breach of peace expected to be committed by the counter petitioners at a particular place at a particular time or period of time and it was intended to prevent that, that they are called upon to enter on a bond for good behaviour for a particular period, so that they can be prevented from participating in any act causing anticipated public tranquility or breach of peace in a particular place for a particular time. On a reading of the impugned order will go to show that there is nothing to infer from that order even to infer, the reason for the learned Sub Divisional Magistrate to come to such a conclusion that the counter petitioner must be asked to enter CRL.MC NO. 8637 OF 2023 5 into a bond for the purpose mentioned under S.107 to 111 of the Code. The learned Magistrate has only reproduced the form without application of mind simply extracting the case numbers in which the counter petitioners were made accused. It is settled law that merely because the counter petitioner was made an accused in a case alone is not sufficient to initiate proceedings against him under S.107 of the Code. The purpose behind the initiation of proceedings is that there is an apprehension in the mind of the authorities that a particular person or set of persons is / are likely to involve in certain activities which is likely to create breach of peace and disrupt public tranquility in a particular place and presence of such persons in that place itself will be sufficient for that purpose and it is in the public interest that has to be prevented and for that purpose the proceedings will have to be initiated on the basis of the information received by the Sub Divisional Magistrate from the police or from other reliable sources and on that basis , he will have to satisfy the existence of such imminent necessity to initiate proceedings against that particular person and called upon to execute bond on good behaviour for a particular period so as to prevent that person causing any breach of peace or public tranquility in a particular place at that particular time. But a reading of the order of the Sub Divisional Magistrate will go to show that there is no application of mind by the learned Sub Divisional Magistrate in all these cases, but simply extracted the form quoted some crime numbers some of them were committed some two or three years ago and issued the order without passing any order as contemplated under S.111 of the Code so as to enable the counter petitioner to meet the grounds on CRL.MC NO. 8637 OF 2023 6 which the proceedings have been initiated against him and as such, the procedure adopted by the Sub Divisional Magistrate, Thalassery in initiating proceedings against the petitioners is illegal and without application of mind and the same are liable to be quashed as it is not passed in terms of the provisions provided under S.107 to 111 of the Code. So, the petitioners are entitled to the relief claimed in these petitions.” [underline supplied] 5. Similarly, in **Ahammad Kabeer v. State of Kerala and another** [2014 KHC 186], this Court considered the ground necessary for initiating such proceedings, and the relevant portion is extracted hereunder : 12. “This was followed by this Court in the decision reported Girish’s Case (cited supra) wherein also it has been mentioned that unless the substance of the information is not stated in the order passed under S.107 of the Code of Criminal Procedure, the order is bad in law. Merely because a crime is registered is not a ground to initiate the proceedings under S.107 of the Code of Criminal Procedure. In this case also even in Annexure - D report, it is only mentioned that there were three crimes registered against the petitioner namely Crime No.164/07 under S.294(b) and S.506 read with S.34 of the Indian Penal Code and that is pending for trial, Crime No. 502/2008 under S.143, S.147, S.148, S.294 (b), 447, 323, 324 and 149 of the Indian Penal Code and Crime No. 1039/09 under S.294(b), S.341, S.324, CRL.MC NO. 8637 OF 2023 7 S.302 read with S.34 of the Indian Penal Code which is now pending as CP No. 134/10 in trial. The counsel for the petitioner submitted that in all these cases the petitioner is on bail. In the first case namely Crime No. 164/2007, he was tried and acquitted by the Court. In the second a case namely Crime No. 502/2008, it was taken on file as CC No. 1768/08 and in that case after trial the case was posted for judgment. The murder case is now ripe for trial. So except these, there is nothing mentioned even in Annexure - D report that after the registration of these cases, the petitioner had involved in any other criminal activity for which any new crimes have been registered. So under the circumstances, there is some force in the submission made by the counsel for the petitioner that there is no valid information or substance furnished by the Sub Inspector of Police while sending Annexure - D report so as to enable the Sub Divisional Magistrate to initiate proceedings against the petitioner under S.107 of the Code of Criminal Procedure. So in the absence of any valid reason stated in Annexure - D report and also in the absence of any particulars mentioned in Annexure - A order which satisfied the second respondent for initiating proceedings against the petitioner under S.107 of the Code of Criminal Procedure or to issue an order under S.111 of the Code of Criminal Procedure, initiating actions by the Sub Divisional Magistrate against the petitioner under S.107 and S.111 of the Code is unsustainable in law and the same is liable to be quashed. In the result, the petition is allowed. The proceedings initiated against the petitioner by the second respondent as MC No. 720/13 and further issuance of Annexure - A order CRL.MC NO. 8637 OF 2023 8 under S.111 of the Code of Criminal Procedure against the petitioner are hereby quashed. Office is directed to communicate this order to the second respondent immediately.” 6. Similarly, the order dated 06.07.2018 in Crl.M.C. No. 4086/2018, the same point is considered. It will be beneficial to extract the relevant portion. “3. I have perused Annexure-A1 order issued by the learned Sub Divisional Magistrate. It is stated that the petitioner is of aggressive nature and he commits crimes repeatedly. At the same time in the order it is specifically mentioned that he is accused only in one case, Crime No.2044 of 2017 registered for the offences under Sections 114, 143, 147, 294(b), 324, 427 and 452 read with 149 IPC. The statement that he commits crime repeatedly is wrong. There is no material to support the prosecution case. The facts of the case are not sufficient to attract Section 107 Cr.P.C. In the result, this Crl.M.C. is allowed. The proceedings in M.C. No.1012 of 2017 on the file of Sub Divisional Magistrate, Kollam are quashed.” 7. Moreover, Annexure-6 is the report submitted by the Meppady Police Station, which leads to Annexure-1. None of the allegations raised in the impugned order is there in Annexure-6 report filed by the police. That itself shows that CRL.MC NO. 8637 OF 2023 9 there is non application of mind by the Sub Divisional Magistrate. Hence, I am of the considered opinion that Annexure-1 is unsustainable. Therefore, this Crl.M.C. is allowed. All further proceedings consequent to Annexure-1 are quashed. I make it clear that the authorities are free to pass appropriate orders if any such circumstances arise in future, in accordance with law. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 8637 OF 2023 10 ## **APPENDIX OF CRL.MC 8637/2023** ## PETITIONER ANNEXURES |Annexure|1|THE PHOTOCOPY OF THE ORDER DATED| |---|---|---| |||13.09.2023 PASSED BY THE SUB DIVISIONAL| |||MAGISTRATE, MANANTHAVADY IN| |||M.C.NO.120/2023| |Annexure|2|TRUE COPY OF FIR IN CRIME NO.431/2022| |||DOWNLOADED FROM THE WEBSITE| |||"THUNA.KERALAPOLICE.GOV.IN"| |Annexure|3|TRUE COPY OF THE REPORT DATED 16.09.2021| |||SUBMITTED BY TALUK SURVEYOR, VYTHIRI TO| |||THE TAHASILDAR (LR), VYTHIRI| |Annexure|4|TRUE COPY OF THE ORDER DATED 17.06.2022 IN| |||I.A.NO.2/2022 IN O.S.NO.117/2022 PASSED BY| |||THE HONOURABLE MUNSIFF'S COURT, KALPETTA| |Annexure|5|TRUE COPY OF THE JUDGMENT DATED 20.07.2023| |||IN W.P. © NO.30006/2022 PASSED BY THIS| |||HONOURABLE COURT| |Annexure|A6|TRUE COPY OF THE REPORT DATED 28.07.2023| |||FILED BY THE INSPECTOR SHO, MEPPADI POLICE| |||STATION BEFORE THE SUB DIVISIONAL| |||MAGISTRATE, MANANTHAVADY|