IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
CRL.MC NO. 1881 OF 2022
CRIME NO.115 OF 2020 OF MARAYAMUTTAM POLICE STATION,
THIRUVANANTHAPURAM
IN MC 193/2021 OF SUB DIVISIONAL MAGISTRATE COURT,TRIVANDRUM
PETITIONER:
SREEKUMARAN NAIR @ MANNOOR SREEKUMAR
AGED 42 YEARS
SARASWATHY VILASAM, MANNOOR DESAM, PERUMKADAVILA,
PIN - 695124
BY ADVS.
HARISANKAR N UNNI
B.S.SWATHI KUMAR
ANITHA RAVINDRAN
N.S.SHAMILA
RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM., PIN - 682031
2 THE SUB DIVISIONAL MAGISTRATE
OFFICE OF THE SUB DIVISIONAL
MAGISTRATE ,THIRUVANANTHAPURAM, PIN - 695001
BY ADV.
ADV. VIPIN NARAYAN A. - SR. PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.05.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 1881 OF 2022
2
ORDER
The petitioner has filed this Crl.M.C. challenging Annexure A preliminary order passed under Section 111 of Cr.P.C. directing the petitioner to appear before the 2nd respondent and to show cause why he should not be ordered to execute a bond for Rs.50,000/- with two solvent sureties as contemplated under Section 107 of Cr.P.C. The learned counsel for the petitioner points out that, Annexure A preliminary order was passed by placing reliance upon a statement submitted by the Sub inspector of Marayamuttom Police Station where, the details of two crimes in which the petitioner was involved, are mentioned. The aforesaid cases are Crime No.115/2020 and Crime No.262/2014 of that police station. It is pointed out that crime No.262/2014 is already quashed by this Court as per Annexure B order passed in Crl.M.C. No.4726/2014 as early as on 12.01.2015. Therefore, it is pointed out that, even as on the date of the statement of the Sub Inspector of Police, one of the cases alleged against the petitioner was not in existence and it indicates a complete non application of mind on the part of the authorities concerned. This Crl.M.C.is filed in such circumstances.
2. Heard Sri.B. S. Swathi Kumar, learned counsel appearing for the petitioner, and Sri.Vipin Narayan, learned Public Prosecutor CRL.MC NO. 1881 OF 2022 3 appearing for the State.
3. As rightly pointed out by the learned counsel for the petitioner, one of the offences which form the basis of opinion to invoke the stipulations contained in Section 107 of Cr.P.C., is Crime No.262/2014, which was not in existence as on the date of submission of the report. The learned counsel for the petitioner places reliance upon the observations made by the hon'ble Full Bench of this Court in Moidu v. State of Kerala [1982 KHC 139], wherein the guidelines to be followed concerning the initiation of proceedings under Section 107 have been formulated by them. The proceedings of the said nature can be initiated based on the analysis of the materials produced by the Police Officer concerned and by appreciation thereof by the Sub Divisional Magistrate. After considering all the relevant inputs, if the Sub Divisional Magistrate arrives at the subjective satisfaction that the activities of the counter petitioner cause an imminent threat to the maintenance of law and order, the powers under Section 107 can be invoked. In this case, the materials appreciated contain a case which was not in existence at the relevant time. In such circumstances, it cannot be concluded that the Sub Divisional Magistrate CRL.MC NO. 1881 OF 2022 4 was furnished with proper details to arrive at a subjective satisfaction appropriately as to the matters relevant for invoking the jurisdiction vested upon him.
4. In such circumstances, I am of the view that Annexure A order cannot be treated as an order properly issued, as the subjective satisfaction claimed to have been arrived at by the 2 nd respondent is based on a statement which contained incorrect facts. In such circumstances, Annexure A is liable to be set aside.
In the result, this Crl.M.C is allowed. Annexure A preliminary order passed by the 2nd respondent is hereby quashed. However, it is made clear that this shall not preclude the authorities concerned from initiating the proceedings against the petitioner, if found necessary, on the materials available with them.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE scs CRL.MC NO. 1881 OF 2022 5 APPENDIX OF CRL.MC 1881/2022 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE ORDER IN M.C.NO.
193/2021 DATED 14-2-2022 OF THE 2ND RESPONDENT.
Annexure B TRUE COPY OF THE JUDGMENT IN
CRL.M.C.NO. 4726/2014 DATED 12-1-2015