Vishnu Unnikrishnan v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 ``` ## `CRL.MC NO. 8724 OF 2022` ``` [CRIME NO.1589/2022 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA] PETITIONER/S: ``` ``` VISHNU UNNIKRISHNAN AGED 24 YEARS S/O UNNIKRISHNAN KAMALALAYAM HOUSE, KATTODU MANJADI P.O., KUTTAPUZHA VILLEGE THIRUVALLA, PATHANAMTHITTA, PIN - 689105 ``` ``` BY ADV AJEESH K.SASI ``` ## `RESPONDENT/S:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## `OTHER PRESENT:` ``` ADV. SREEJA V. - Sr. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC No.8724 /2022 2 ## `O R D E R` ``` The petitioner is the respondent in M.C.No. ``` ``` 63/2022 of the file of the Sub Divisional ``` ``` Magistrate,Thiruvalla.Theaforesaid ``` ``` proceedings were initiated by the Sub Divisional ``` ``` Magistrate under Section 107 of the Code of ``` ``` Criminal Procedure (Cr.PC). This Crl.M.C. is ``` ``` filed challenging the preliminary order passed by the learned Magistrate under section 11 of ``` ``` the Cr.PC, a copy of which is produced as ``` ``` Annexure-1. The learned counsel for the ``` ``` petitioner challenges the Annexure-1 preliminary order mainly on the ground that, the aforesaid ``` ``` order is not a speaking order and it does not contain the substance of information based on which the learned Magistrate had taken the ``` ``` decision to invoke his power under section 107 of Cr.PC. ``` ``` 2.Heard Sri. Ajeesh K. Sasi, the learned ``` CRL.MC No.8724 /2022 3 ``` counsel for the petitioner and Smt.Sreeja V., ``` ``` the learned Senior Public Prosecutor for the ``` ``` state. ``` ``` 3.As mentioned above, the crucial contention raised by the learned counsel for the petitioner is that, Annexure-1 preliminary order was not issued in compliance with the statutory stipulations in this regard, as contained in section 107 r/w. Section 111 of Cr.PC. Reliance was also placed on the decisions in Moidu v. State of Kerala [1982 KHC 139], Madhu Limaye v. Sub Divisional Magistrate, Monghyur [AIR 1971 SC 2486] andGirish P. and Others. v. State of Kerala and Another [2009(4) KHC 929]. ``` ``` 4.The learned Public Prosecutor would oppose the aforesaid contentions by contending that what is under challenge is only a preliminary order and the petitioner can submit his objections before the Sub Divisional Magistrate and raise all his contentions before ``` CRL.MC No.8724 /2022 4 ``` the said forum. Upon submission of such ``` ``` objection, an inquiry could be conducted under section 116 of Cr.PC and those contentions could be considered by the learned Magistrate. Therefore, it is pointed out that, Crl. M.C. is ``` ``` premature and not liable to be entertained. ``` ``` 5.I have gone through the records. The ``` ``` settled legal position is to the effect that the preliminary order passed under section 111 of ``` ``` Cr.PC should disclose the substance of ``` ``` information and the satisfaction arrived at by ``` ``` the learned Magistrate based on the same. In Madhu Limaye’s case (supra), it was observed by the Hon’ble Supreme Court as follows: ``` ``` "The procedure begins with S.112. It requires that the Magistrate acting under S.107 shall make an order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. 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 bodily but it must give proper notice of what has moved the ``` CRL.MC No.8724 /2022 5 ``` 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." ``` ``` In Moidu v. State of Kerala [1982 KLT 578],a ``` ``` Full Bench of this Court has considered the question and observed as follows: ``` ``` “13. Regard being bad to the object of S.107 of the Code and particularly the fact that it is not intended as a punitive action but preventive even where punitive action is taken preventive action may be called for if the character of the information is such that the Magistrate would be justified in acting on such information. As a rule of prudence it may be said 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 S.107 of the Code. Ultimately it would be for the Magistrate to consider whether on an overall consideration of the facts available to him by way of information he could form the opinion that the person against whom he was proposing to take action under S.107 was likely to cause imminent breach of the peace or disturb the public tranquillity. We make it clear that to the extent the decision of this court in Chirukandath Chandrasekharan v. State of Kerala, 1970 KLJ 61 can be read as prohibiting reliance on such information in categorical terms, we do not agree. As we stated earlier, had it been stated as a rule of prudence or caution we may not have seen reason to disagree with it.” ``` ``` The aforesaid decisions were also followed in ``` **==> picture [465 x 51] intentionally omitted <==** ``` which, unless a preliminary order contain the ``` CRL.MC No.8724 /2022 6 ``` substance of information based on which the ``` ``` learned Magistrate decided to invoke his powers under section 107, proceedings would be vitiated. In this case, going through Annexure-1 preliminary order, it can be seen that even though the said order contain the details as to the number of criminal cases registered against the petitioner and the offences involved therein, there is absolutely no mention as to the nature of allegations made against the petitionerinthosecases.Insuch circumstances, as the nature of the allegations against the petitioner is absent in the preliminary order, it cannot be treated as an order which would disclose the substance of information, based on which the jurisdiction vested upon the learned Magistrate has been exercised. As observed in the above mentioned judgments, as the proceedings under section 107 Cr.PC is a preventive action and not a punitive ``` CRL.MC No.8724 /2022 7 ``` one, more care and caution have to be exercised ``` ``` while dealing with the same. This is particularly because such a proceeding is likely to infringe the personal liberty of the petitioner guaranteed under Article 21 of the Constitution of India, and therefore, unless such a proceeding is absolutely necessary, it cannot be initiated. In this case, as I have already found that the impugned order is not a ``` ``` speaking order and lacks the details of the substance of information, the only conclusion possible is that the initiation of the ``` ``` proceedings based on such an order, is against ``` ``` the statutory stipulations in this regard and ``` ``` also the principles laid down by the Hon’ble Supreme Court and this Court, in the decisions ``` ``` referred to above. Therefore, I find this as a ``` ``` fit case in which the powers of this Court under section 482 Cr.PC is to be invoked. ``` ``` In the result, this Crl.M.C. is allowed, ``` CRL.MC No.8724 /2022 8 ``` Annexure-1 order passed by the Sub Divisional Magistrate, Thiruvalla in M.C.No.63/2022 on 26.09.2022 is hereby quashed. However, it is ``` ``` made clear that this order would not preclude the Sub Divisional Magistrate from initiating any fresh action under Section 107 Cr.PC, if found necessary, after complying with all the legal requirements. ``` ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.8724 /2022 9 ## `APPENDIX OF CRL.MC 8724/2022` ``` PETITIONER’S ANNEXURES Annexure1TRUE COPY OF THE PRELIMINARY ORDER IN MC NO. 63/2022 U/S SECTION 107 R/W SECTION 11 OF CR.PC DATED 26.9.2022. ```