Tenson Kandathinkara and Others v. State of Kerala and S.I. of Police Payyavoor Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938** **Crl.MC.No. 2388 of 2016 () --------------------------MC 177/2016 of SUB DIVISIONAL MAGISTRATE, THALASSERY** **-------** ## **PETITIONER(S)/COUNTER PETITIONER:** **--------------------------------** **1. TENSON KANDATHINKARA,** - **S/O.GEORGE, AGED 50 YEARS, KANDATHINKARA HOUSE, PAISAKKARI PO, PAYYAVOOR AMSOM, TALIPARAMBA TALUK, KANNUD DISTRICT.** **2. SHIJU PULLAT** - **S/O.THOMAS, AGED 33 YEARS, PULLAT HOUSE, VACHIYAM, PAYYAVOOR PO, PAYYAVOOR AMSOM, TALIPARAMBA TALUK, KANNUD DISTRICT.** **3. MANOJ MUNDAKKAL** - **S/O.DEVASSIA, AGED 30 YEARS, MUNDAKKAL HOUSE, PAISAKKARI PO, PAYYAVOOR AMSOM, TALIPARAMBA TALUK, KANNUD DISTRICT.** **4. THANKACHAN VETTATH, S/O.THOMAS** - **AGED 41 YEARS, VETTATH HOUSE, PAYYAVOOR PO, PAYYAVOOR AMSOM, TALIPARAMBA TALUK, KANNUD DISTRICT.** **5. NOBINS, S/O.MATHEW** - **AGED 43 YEARS, CHERIPPURAM HOUSE, PAISAKKARI PO, PAYYAVOOR AMSOM,** - **TALIPARAMBA TALUK, KANNUD DISTRICT.** **6. XAVIER THOMAS, S/O.THOMAS, AGED 27 YEARS, PALLIPURATH HOUSE, PAISAKKARI PO, PAYYAVOOR AMSOM, TALIPARAMBA TALUK, KANNUD DISTRICT.** **BY ADVS.SRI.V.A.SATHEESH** **SRI.V.T.MADHAVANUNNI** ## **RESPONDENT(S)/STATE/PETITIONER:** **-------------------------------** **1. S.I. OF POLICE PAYYAVOOR POLICE STATION, KANNUR DISTRICT.** ## **2. STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **R1 & R2 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **bp** **Crl.MC.No. 2388 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1: TRUE COPY OF THE PRELIMINARY ORDER IN MC NO.177/2016 OF SUB DIVISION MAGISTRATE COURT, THALASSERY DATED 1.4.2016** **RESPONDENT(S)' EXHIBITS** **:** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.2388 of 2016 ----------------------------------------Dated this the 10[th] day of August, 2016** ## **O R D E R** - 1.The petitioners are proceeded under Section 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the Sub Divisional Magistrate, Thalassery on a report filed by the Sub Inspector of Police, Payyavoor Police Station. By Annexure-A1 order, the petitioners were called upon to appear before the said officer in person at 11.00 a.m. on 7.4.2016 and to show cause why they should not be required to enter into a bond of Rs.50,000/- each with two sureties for the like amount for keeping peace for a term of one year. - 2.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. - 3.It is submitted by the learned counsel that the proceedings have been initiated on the basis of a solitary Crl.M.C.2388/2016 2 crime, registered inter alia for offence under section 324 of the IPC as crime No 640 of 2015 . The order is also silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioners are likely to disturb peace and tranquility in a particular locality and in order to prevent the same, it is necessary to take preventive action against them. It is urged that the materials before the learned Magistrate was thoroughly inadequate to arrive at the requisite satisfaction. Finally it is contended that the order falls short of the mandatory requirements under Section 111 of the Code. Reliance is placed on the Full Bench decision of this Court in **Moidu v. State of Kerala** [1982 KHC 139 : 1982 KLT 578] and the decision of the learned Single Judges in **Peethambaran v. State of Kerala** [1980 KHC 239 :1980 KLT 876 : ILR 1980 (2) Ker. 589], **Santhosh M.V. and Others V State of Kerala** [2014 (2) KLD 519] and **Bejoy K.V. V State of Kerala** [2015 (2) KLD 889]. Crl.M.C.2388/2016 3 - 4.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police, Payyavoor Police Station that the petitioners are likely to indulge in further criminal acts causing breach of peace and public tranquility in the area that preventive action was initiated. - 5.I have perused the materials on record as well. - 6.Under Section 107 of Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace, 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 not exceeding one year. This has to be done in the manner provided in Section 111. That Section requires a Magistrate to make an order in writing, setting forth the substance of the information received. The _sine qua non_ for the institution of a proceeding under the Section is that the Magistrate shall be of the opinion that there is Crl.M.C.2388/2016 4 sufficient ground for proceeding. The Magistrate, has, under the law, to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility before taking action. For that purpose, the Magistrate before issuing notice under 111 must record the grounds, which, in his opinion as sufficient for proceeding further. ## 7.In **Madhu Limaye and Another v. SDM, Monghyr** [AIR 1971 SC 2486] the Apex Court, in para 36 of the judgment, had cautioned the Executive Magistrate exercising powers under Section 107 in the following manner:- _"We have seen the provisions of Sec. 107. That section says that action is to be taken in the manner here-in-after provided and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should_ Crl.M.C.2388/2016 5 _only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of general public."_ ## It was further observed in Para 37 as under:- _"Since the person to be proceeded against, has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquility at his hands. Although the section speaks of the ''substance' of the information, it does not mean the order should not be full. It may not repeat the information but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word ''substance' means the essence of the most important parts of the information."_ Crl.M.C.2388/2016 6 8.On perusing Annexure-A1 order, it is evident that the Sub Divisional Magistrate has disregarded the statutory mandate and has invoked powers vested on him in a callous manner. The mere fact that the petitioners are involved in a single crime could not have been taken as the basis to issue a preventive order against the petitioners herein. (see **Santhosh M.V. and others v. State of Kerala** [2014 (3) KLT 837; Girish P and Others v. State of Kerala [2009 (4) KHC 929]). The reasons which led the Sub Divisional Magistrate to initiate proceeding is not disclosed in the order. In the absence of any evidence rendering a breach of peace probable, a Magistrate is not justified in calling upon parties, to show cause why he should not enter into recognisances, and on his failure , to make an order under the section. (see **Moidu v. State of Kerala** [1982 KLT 578]. It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or Crl.M.C.2388/2016 7 general statements. Annexure-A1 order does not state in what way or with reference to what matter the petitioners were likely to commit a breach or peace. There was no tangible evidence before the learned Magistrate that some definite Act is contemplated, which Act, if committed, is likely to cause breach of peace. Annexure-A1 order does not fulfill the requirement under Section 111 and reveals total non application of mind. 9.The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not punishment of crimes. It is not intended to punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion a breach of the peace. The section is designed to enable the Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility. Wide powers have been conferred on the magistrates specified in this section and Crl.M.C.2388/2016 8 as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law. 10.I am unable to sustain Annexure-A1 order for the reasons detailed above. The petition is allowed. All further proceedings against the petitioners now pending as M.C.No.177 of 2016 on the file of the Sub Divisional Magistrate Court, Thalassery, will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps