Vijayan and others v. State of Kerala and Sub Inspector of Police, Kasaragod

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 Crl.MC.No. 4036 of 2005() ------------------------MC.38/2005 of SUB DIVISIONAL MAGISTRATE KASARGOD AT KANHANGAD. .................... PETITIONER: - ------------ 1. VIJAYAN, S/O. RAMAN, THANDAMTHOTTY HOUSE, MANIYANGANAM, CHAMMANAD VILLAGE, KASARAGOD TALUK. 2. KUNHIRAMAN, MANIYANGANAM, CHAMMANAD VILLAGE, KASARAGOD TALUK. 3. LAKSHMI, W/O. KUNHIRAMAN, MANIYANGANAM, CHAMMANAD VILLAGE, KASARAGOD TALUK. 4. NISHA, D/O. KUNHIRAMAN, MANIYANGANAM, CHAMMANAD VILLAGE, KASARAGOD TALUK. 5. VISHWAMBHARAN, S/O. KUNHIRAMAN MANIYANGANA, CHAMMAND VILLAGE, KASARAGOD TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION. BY PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.14685/05 IN CRL.M.C.4036/05 //DISMISSED// 14.2.2008 SD/= V.K.MOHANAN, JUDGE. ## **V.K.MOHANAN, J** = = = = = = = = = = = = = = = = ## **Crl. M.C. No. 4036 OF 2005** = = = = = = = = = = = = = Dated this the 14 **[th]** day of February, 2008. = = = = = = = = == = = = = = = = = = = ## O R D E R The petitioners herein are the counter petitioners in M.C.38/05 on the file of the Sub Divisional Magistrate, Kasaragod. Proceedings have been initiated under Section 107 of Cr.P.C. According to the petitioners the issuance of Annexure A1 proceedings by invoking Section 107 of Cr.P.C. is an abuse of the process of court and is patently illegal and unjust and hence the petitioners had approached this court to quash the same. 2. M.C. 38/05 is a proceedings initiated under Section 107 of Crl.P.C by the Sub Divisional Magistate, Kasaragod at Kanhangad. It is stated that he had received a report from the Sub Inspector of Police, Kasaragod, duly counter signed by the Circle Inspector of Police, Kasaragod and Deputy Superintendent of Police, Kasaragod, that the petitioners herein who are the counter petitioners in the proceedings and are residing within the **Crl. M.C. No. 4036 OF 2005** **2** limits of jurisdiction of the Sub Divisional Magistrate and they are likely to cause breach of peace and disturb public tranquility in that locality. The report so received by the Sub Divisional Magistrate, further state that the petitioners herein are residing in Chemmanad Village of Kasaragod Taluk and they are likely to cause political conflict and disturb public tranquility in that locality and it is also reported that the petitioners herein had involved in Crime No. 482/05 of Kasaragod Police Station for the offences punishable under Sections 143, 147, 148, 341, 323, 324, 452, 506 (1) r/w 140 of I.P.C. It is also stated that written petitions have been received against the petitioners and warning were given to them in response to the petitions No. 242/05, 395/05 of Kasaragod Police Station. It is also stated that the Sub Inspector of Police, Kasaragod has recommended to initiate proceedings under Section 107 of Crl.P.C., so as to prevent the petitioners from creating serious disturbances and public tranquility in the locality and the petitioners are conducting unlawful acts of violence. 3. According to the Sub Divisional Magistrate the information furnished through the report of the Sub Inspector of **Crl. M.C. No. 4036 OF 2005 3** Police is substantiated by registering FIR under Section 107 of Cr.P.C. It is also stated that the sub Inspector of Police personally appeared before the Sub Divisional Magistrate and stated that the written complaints were received against the petitioners herein from the local residents. It is on the basis of the above report and information the Sub Divisional Magistrate, came to an opinion that the petitioners herein are likely to cause breach of peace and disturb public tranquility and there are sufficient grounds to proceeds against them under Section 107 of Cr.P.C. Thus, the Sub Divisional Magistrate issued an order requiring the petitioners to appear before him in court at Kanhangad on 13.10.2005 at 11 AM and show cause why they should not be ordered under Section 107 of Cr.P.C. r/w 111 of the said code to execute a bond for Rs. 10,000/- each with two solvent sureties for a like amount to keep peace for a period of one year. 4. The said order is issued on 1.9.2005 and the same is produced along with this Cr.M.C. as Annexure A1. The above proceedings is challenged in this Cr.M.C, stating that the proceedings are initiated only at the instance of one Narayanan **Crl. M.C. No. 4036 OF 2005** **4** or his brother-in-law, one Ramakrishnan, who is attached to the office of the Circle Inspector of Police, Kasaragod. It is stated in the M.C. that though several allegations are pending against Narayanan, who is the accused in Annexures A2, A3 complaints and Annexures A4 and A5 crimes and no similar proceedings initiated against him. But the 107 proceedings is initiated only against the petitioners. It is also stated in the M.C. that there is no materials or report to form an opinion that the petitioners are likely to cause breach of peace or public tranquility and therefore the initiation of proceedings under Section 107 is illegal and without jurisdiction. Therefore according to the petitioners Annexure A1 and all proceedings thereon are liable to be set aside. 5. I have heard the learned counsel for the petitioners as well as the learned public prosecutor. 6. The learned public prosecutor submitted that the petitioners are involved in crime No. 482/05 of Kasaragod Police Station for various offences and are pending in the police station and they were warned not to repeat the offences as committed earlier. Justifying the proceedings initiated by the Sub Divisional **Crl. M.C. No. 4036 OF 2005** **5** Magistrate, the learned public prosecutor submitted that the report of the Sub Inspector of Police, Kasaragod shows that even after the registration of crime against the petitioners and also after giving warning to them on the basis of the petitions received against them, they are creating serious disturbances and public tranquility and therefore the authorities who are bound to maintain law and order, recommended the Sub Divisional Magistrate to initiate proceedings under Section 107 of Cr.P.C. The materials now available are sufficient and up to the satisfaction of the Sub Divisional Magistrate for initiating proceedings under 107 of Cr. P.C. especially when he had come into a positive conclusion unless proceedings is initiated under 107 of Cr.P.C., the petitioners cannot be prevented from indulging further incidents which are likely to create serious disturbances and public tranquility. Therefore according to the public prosecutor, there is no illegality in Annexure A1 proceedings of the Sub Divisional Magistrate and it is perfectly legal and justifiable. 7. The learned counsel for the petitioners submitted that Annexure A1 does not show any cause for action taking or **Crl. M.C. No. 4036 OF 2005** **6** initiating proceedings under Section 107 of Cr.P.C. According to the counsel for the petitioners, so far only one crime is registered against the petitioners and there after no crime was registered against them. Therefore it is submitted that based upon a crime which was registered much earlier, shall not be the basis for the initiation of proceedings under Section 107 of Cr.P.C. It is also submitted that on the strength of a decision of this Court reported in _**Moidu vs. State of Kerala**_ (1982 KLT 578 (FB)), that information about events which are the subject matter of pending prosecutions may not by themselves be relied on by the Magistrate as information sufficient to warrant an order under Section 107. It is also submitted by the counsel for the petitioners that the present proceedings is initiated only because of the influence of one Narayanan, who is the 1[st] accused in Annexure A2 and also accused in certain other cases which are mentioned in the pending cases namely, Crime Nos. 619/05, 543/05 etc. of Kasaragod Police Station. Pointing on the above crimes pending against the said Narayanan, it is submitted that though criminal cases are pending against him, no action was taken against him under Section 107 of Cr.P.C. The proceedings **Crl. M.C. No. 4036 OF 2005** **7** is initiated against the petitioners only to harass them. 8. Though Annexure A1 proceedings was initiated as early as on 1.9.05, thereafter no incidents have been reported and the petitioners are not involved even as accused. In the above circumstances I am not going into examine the merits or otherwise on the contentions raised in the Cr.M.C. 9. As pointed out earlier Annexure A1 proceedings was initiated under Section 107 or Cr.P.C. rightly as on 1.9.05. The petitioners approached this court by filing this Cr.M.C. on 2.12.05 and by order dated 6.12.05 in Cr.M.A. 14685/05, this court had stayed the operation of Annexure A1 proceedings and thereafter the stay is being extended and the same is in force. As stated earlier, after issuing Annexure A1 order, there are no allegations against petitioners that they have involved in other crimes or other incidents which create disturbance or public tranquility. In a decision, namely by the learned counsel for the petitioners namely, _**Basudeo Sharma and others vs. State of Bihar and others**_ (1996(2) Crimes 376) the Patna High Court held that, “As mentioned earlier, the proceeding was **Crl. M.C. No. 4036 OF 2005** **8** initiated on 27.7.91 and since then more than three and half years have already elapsed. It is the case of neither party that there was any breach of peace at the hands of either of the parties after the initiation of the proceeding on 27.7.91. That being so the necessity of executing bond for maintaining peace does not appear to be there”. The Apex Court in _**Brij Gopal Chaturvadi vs. State of M**_ (1997 SCC(Cri) 569), it is held that, “Since the appellant was ordered to execute a bond for observing good conduct for two years, the operation of which order was stayed by this Court on admission of appeal, one of the points which arises for consideration is whether the operation of the order be now revived on giving it a fresh lease of time. Almost six years have gone by. The appellant has not attracted any complaint of any untoward behaviour or misconduct. The observance of good conduct expected of him would now, if at all, have to be in the future. That apart, on merit we find no ground to interfere insofar as the establishment of contempt is concerned. Therefore, without any meaningful relief due to the appellant, the appeals stand disposed of. It is made clear that the appellant need not execute the bond as required of him earlier. No costs.” 10. On examination of the facts and circumstances involved in the case on hand in the light of the above decision, it **9** **Crl. M.C. No. 4036 OF 2005** can be seen that though Annexure A1 order was passed as early as on 1.9.05, more than 2 years are over and there is no complaint that petitioners have subsequently involved in any untoward behaviour or conduct so as to create disturbances or public tranquility. In the result, I am of the opinion that the Annexure A1 order need be revived and the petitioner need not execute a bond as required as per Annexure A1 order and therefore Annexure A1 order is quashed accordingly and Cr.M.C. allowed. ## **V.K.MOHANAN, JUDGE** bkn/-