Sunil Sivanandan v. State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam and Sub Inspector of Police Paravur Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **Crl.MC.No.172 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OTHERS 69/2014 OF SUB.DVL.MAGISTRATE,KOLLAM** ## **PETITIONER/S:** **SUNIL SIVANANDAN AGED 51 YEARS S/O.SIVANANDAN, RESIDING AT SANKAR'S BHAVAN, KOONAYIL,PARAVUR, KOLLAM DISTRICT-691301.** **BY ADVS. SRI.M.RAJENDRAN NAIR SMT.M.SANTHY** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2 SUB INSPECTOR OF POLICE PARAVUR POLICE STATION,PARAVUR.P.O, KOLLAM DISTRICT-691301.** ## **BY D.CHANDRASENAN -SR.P.P** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-022019, THE COURT ON 12-11-2019 PASSED THE FOLLOWING:** **Crl.MC.No.172 OF 2015** **2** ## **ANNIE JOHN, J** **=================== Crl.M.C.No.172 of 2015 =========================== Dated this the 12[th] day of November, 2019** ## **ORDER** The petitioner is working as Clerk S.N.V.High School for Girls, Paravur, Kollam District which is an aided Management School from 2006 onwards. The appointment of the petitioner on compassionate ground was challenged by one M.Vinod before this Court in W.P.(C) No.23962/2007 and the same was dismissed on 23.06.2011. Against the judgment Sri.Vinod filed Writ Appeal 962/2011 and that appeal was also dismissed by judgment dated 29.08.2014. While the petitioner was continuing thus as clerk, he applied for approval of the post in order to enable him to **Crl.MC.No.172 OF 2015** **3** get salary. When the matter was pending the said Vinod with the aid of a Police Constable working at Paravur Police Station caused to initiate certain criminal complaints against the petitioner alleging that he advanced money to 3 persons and obtained cheque and other documents from them and to recover those amounts the borrowers are cheated and accordingly three crimes Nos.1440/12, 1345/2014 and 126/2014 were registered against the petitioner. On the basis of the said crimes, the Educational Authority has protracted the proceedings for approval of the petitioner's post and that was also challenged by the petitioner before this Court. The second respondent at the influence of the aforesaid Vinod and a Police Constable working at Paravur Police Station has later initiated proceedings before the Sub Divisional Magistrate Court, Kollam under **Crl.MC.No.172 OF 2015** **4** Sec.107 of Cr.P.C. The above said action is kindly aggrieved by the same, the petitioner has approached this Court in order to quash the entire proceedings pending before the Sub Divisional Magistrate Court, Kollam. 2. The learned counsel for the petitioner submitted that the proceedings initiated under Section 107 Cr.P.C is a total abuse of the process of the Court and it is vitiated by malice and arbitrary exercise of power to favour his subordinate and friend. It was further submitted that the petitioner has never being engaged in the money lending business and he has never approached anyone including ladies, nor he has threatened anyone or obtained documents from them, immediately when the petitioner came to know of registering of FIR against him applied for bail and he was enlarged on bail by the Court. **Crl.MC.No.172 OF 2015** **5** 3. According to the petitioner's counsel the intention behind the initiation of the proceedings under Section 107 Cr.P.C is just to harass him and persuade the Educational Authority from not regularising his appointment. 4. It is also argued by the learned counsel that even if three criminal complaints were registered against him that will not be sufficient enough to initiate the proceedings under Section 107 Cr.P.C. Moreover, all the cases are just money transactions and the offences under Section 420 and 34 IPC r/w Section 17 of the Money Lenders Act is not maintainable. 5. It was further argued that those allegations will not anyway affect public tranquillity, peace or life of any member of the public. The said Act can also no way affect the public of the locality or any **Crl.MC.No.172 OF 2015** **6** member of the public. Therefore, the learned counsel prays that the entire proceedings to be quashed by invoking jurisdiction of this Court under Section 482 Cr.P.C. 6. According to the petitioner's counsel the Sub Inspector could not have initiated action under Section 107 Cr.P.C, in a circumstances of a similar nature when there are no public tranquillity, peace or life of any public involved in the matter. 7. The learned Sub Divisional Magistrate should have noticed that the present petitioner had not even filed a complaint against any of the persons figuring as de- facto complainant in the CMPS referred in the report of the Sub Inspector, Paravur. Actually in the report, the Sub Inspector has narrated vague allegations against the petitioner and no serious allegations was noted in order to invoke Section 107 Cr.P.C. **Crl.MC.No.172 OF 2015** **7** 8. The petitioner's counsel has also cited the ruling held in _**Peethambaran v. State of Kerala [1980 KLT 876]**_ , wherein the scope and ambit of Section 107 Cr.P.C was discussed. 9. It was held that Section 107 does not contemplate the drawing up of proceedings automatically whenever information of the kind mentioned in Section 107 is received by the Magistrate. Action can be taken only when the Magistrate is of opinion that there are sufficient grounds for proceeding. The Magistrate has to exercise his discretion with reference to the credibility and sufficiency of the information received by him. The prior formation of the opinion by the Magistrate under Section 107 is that which gives him jurisdiction to proceed further under Section 111 and following sections. Though the initiation of the **Crl.MC.No.172 OF 2015** **8** proceedings depends on Magistrate's subjective satisfaction and in his discretion, there should be cogent materials before him on which a reasonable opinion for initiating the action could be formed. An apprehension of a possible breach of peace is not what is contemplated in Section 107. It must appear to the Magistrate that a likelihood of a breach of peace is imminent and there must be something more than a bare possibility. The Executive Magistrates being so authorised, it is essential that the steps they take under the very wide power given should be one for maintenance of peace and order. The Magistrate should understand that in the exercise of his powers under Section 107, be owes no obedience to any executive power. He is only to act reasonably and in good faith. It has held that when the relevant materials before the Magistrate are **Crl.MC.No.172 OF 2015** **9** insufficient to support the action, the Court has no option but to interfere. It has held in _**Moidu v. State of Kerala [1982 KLT 578 (F.B)]**_ that the breach of the peace must be imminent to justify action under Section 107. The information about the past conduct or wrongful acts of the past must not be remote or isolated but must be relatable to the present apprehension in the sense that it must have some relevance to the apprehension of likelihood of breach of the peace or disturbance of public tranquillity. It is further held that in a proceedings under Section 107 may happen to be material on the basis of which the investigation by the police is pending on trial before courts. The object of Section 107 is not intended as punitive action but preventive even where punitive action is taken preventive action may be called for if the character of the **Crl.MC.No.172 OF 2015** **10** information is such that the Magistrate would be justified in acting on such information. 10. Section 107 is that when there was likely to cause imminent breach of the peace or disturb the public tranquillity. Then only the Magistrate can initiate Section 107 of the Cr.P.C. 11. Here, the petitioner's case is that the registering of the crime is not being sufficient to initiate action under Section 107 of the Cr.P.C. It is true that Section 107 is not punitive in nature, but is intended to prevent apprehended breaches of the peace. But that does not mean that past violent activities, especially those of the immediate past, cannot be taken into consideration to arrive at the conclusion that there is likelihood of a breach of the peace in the future. 12. In this connection, I have gone **Crl.MC.No.172 OF 2015** **11** through the report filed by the Sub Inspector of Police that it was stated that the petitioner has given loan to 3 persons in an excessive interest for that purpose he was creating problems in the public. The name of the three persons were also given in the report. It was also stated that the three cases were registered against the petitioner as Crime No.1440/12 under Section 420 & 34 IPC and Section 17 of the Money Lenders Act and Crime No.1345/2014 and 126/2014 under the Money Lenders Act. But these are the crime registered in relation to the Money Lenders Act. There is no allegation that the imminent danger will be passed in order to disturb the public tranquillity. So the initiation of the proceedings under Section 107 of the Cr.P.C is not justified. Therefore, the petition is only to be allowed. In the result, the Crl.M.C is **Crl.MC.No.172 OF 2015** **==> picture [15 x 8] intentionally omitted <==** allowed. The entire proceedings initiated under Section 107 of the Cr.P.C by the Sub Divisional Magistrate Court, Kollam is hereby quashed. Sd/- **ANNIE JOHN, JUDGE** ## **SMA** **Crl.MC.No.172 OF 2015** **13** ## **APPENDIX** **' - PETITIONER S/S ANNEXURES :** ## **ANNEXURE A1** **TRUE COPY OF REPORT BY THE SUB INSPECTOR,PARAVUR NO.69/GL/2014/K1 .** **RESPONDENT(S)' ANNEXURES :- NIL** **//TRUE COPY// PA TO JUDGE** **==> picture [22 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> SMA<br>**----- End of picture text -----**<br>