Thomas P. Oommen @ Jolly v. The Sub Inspector of Police, Pulikeezhu Police Station, Pathanamthitta District, and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 ``` ``` CRL.MC NO. 7309 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT MC IN 39/2022 OF SUB DIVISIONAL MAGISTRATE COURT,THIRUVALLA ``` ## **`PETITIONER/RESPONDENT:`** ``` THOMAS P. OOMMEN @ JOLLY AGED 56 YEARS, S/O MAMMEN OOMMEN, PALLUVIRUTHIL HOUSE, KIZHAKKUMBHAGAM P.O., KADAPRA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689621 ``` ``` BY ADV BABU CHERUKARA ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1THE SUB INSPECTOR OF POLICE PULIKEEZHU POLICE STATION, PATHANAMTHITTA DISTRICT, PIN - 689104 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN - 682031 ``` ``` BY ADV. ``` ``` SRI. HRITWICK C.S., PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 ``` CRL. M.C. NO.7309 OF 2023 ``` **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 7309 of 2023 ---------------------------------------------Dated this the 03[rd] day of October, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed to quash Annexure-A7 preliminary order passed by the Sub Divisional Magistrate Court, Thiruvalla invoking the powers under Section 107 Cr.PC. Annexure-A7 order is passed based on Annexure-A6 report submitted by the Sub Divisional Magistrate. Annexure-A7 is the preliminary order issued under Section 107 Cr.P.C. r/w Section 111 Cr.P.C. 2. It is the case of the petitioner that Annexure A7 order issued by the Sub Divisional 3 ``` CRL. M.C. NO.7309 OF 2023 ``` Magistrate does not contain the substances of the information received by the 1st respondent 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 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).** 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. A perusal of Annexure A7 order would not show that it is an order passed in tune with Section 107 r/w Section 111 Cr.PC. In **Girish P' case** (supra), the mandate of Section 111 and ``` CRL. M.C. NO.7309 OF 2023 ``` 4 ## Section 107 Cr.PC 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 tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility 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 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 set forth the substance of the information' in the ``` CRL. M.C. NO.7309 OF 2023 ``` 5 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 breach of peace warranting initiation of proceedings under S.107 of Code of Criminal Procedure, 1973.” 5. In **Bejoy K.V's case** (supra) also, this Court considered the same point and relevant ``` CRL. M.C. NO.7309 OF 2023 ``` 6 ## 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 Cr.PC, 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 and only on sufficient and satisfactory information being furnished, he will be able to answer the same. Therefore, the Sub Divisional Magistrate ``` CRL. M.C. NO.7309 OF 2023 ``` 7 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 tranquility. 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.” 6. Moreover, a perusal of Annexure-A7 would show that only a single case is registered against the petitioner. This Court in **Santhosh** 8 ``` CRL. M.C. NO.7309 OF 2023 ``` **M.V. v. State of Kerala and others (2014 KHC 522)** observed that it is a 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 Section 107 of Cr.P.C. In **Ahammed Kabeer v. State of Kerala and others (2014 KHC 186)** this Court observed that merely because a crime is registered is not a ground to initiate prosecution under Section 107 of Cr.P.C. 7. In the light of the above dictum, I am of the considered opinion that Annexure A7 is not an order in tune with Section 111 Cr.PC and 107 Cr.PC. The substances of information received and the details of the case are not narrated in the 9 ``` CRL. M.C. NO.7309 OF 2023 ``` notice. Therefore, I am of the considered opinion that Annexure A7 proceedings is unsustainable. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings based on Annexure-A7 are quashed. But, I make it clear that The Sub Divisional Magistrate, Thiruvalla is free to proceed against the petitioner, if there is any fresh cause of action, in accordance with law. nvj Sd/- **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.7309 OF 2023 ``` 10 ## **`APPENDIX OF CRL.MC 7309/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUECOPYOFTHEPLAINT O.S.NO.152/2020 OF THE MUNSIFF'S COURT, THIRUVALLA DATED 20-5-2020 ANNEXURE A2TRUE COPY OF THE TEMPORARY INJUNCTION ORDER IN I.A.NO.1/2020 IN O.S.152/2020 OF THE MUNSIFF'S COURT, THIRUVALLA ``` ``` ANNEXURE A3TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE STATION HOUSE OFFICER, THIRUVALLA POLICE STATION DATED 15-06-2020 ``` - `ANNEXURE A4 TRUE COPY OF THE F.I.R. IN CRIME NO. 891 /2020 OF PULIKEEZHU POLICE STATION` ``` ANNEXURE A5TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.15477 OF 2020 OF THE HON'BLE HIGH COURT OF KERALA DATED 21-8-2020. ``` ``` ANNEXURE A6CERTIFIEDCOPYOFTHENON CONGNIZABLE OFFENCE INFORMATION REPORTREGISTEREDUNDERTHE PROVISIONS OF S.107 CR.P.C. BY THE 1ST RESPONDENT BEFORE THE SUB DIVISIONAL MAGISTRATE, THIRUVALLA ``` ``` ANNEXURE A7ORIGINAL OF THE PRELIMINARY ORDER IN M.C.39/2022 U/S 107 CR.P.C. R/W SEC.111 DATED 19-07-2022. ``` ``` CRL. M.C. NO.7309 OF 2023 ``` 11 ``` ANNEXURE A8TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 4-11-2022 IN M.C. NO. 39/2022 ``` ``` ANNEXURE A9TRUE COPY OF THE PETITION FILED BY THE PETITIONER DATED 24-8-2023 BEFORETHESUBDIVISIONAL MAGISTRATE, TIRUVALLA SO AS TO TERMINATE THE PROCEEDINGS IN THE ANNEXURE A6 U/S 107 CR.P.C. ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE