Karnataka High Court
Mohd. Abdul Faheem vs The State Of Karnataka on 8 December, 2021
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201352/2021
BETWEEN:
MOHD. ABDUL FAHEEM
S/O MOHAMMAD HANEEF
AGE: 55 YEARS
OCC: REAL ESTATE BUSINESS
R/O MIJAGURI, GUNJ ROAD
KALABURAGI-585102
... PETITIONER
(BY SRI R.S.LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH THE SHO.,
ROZA P.S., KALABURAGI
REPRESENTED BY THE
ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI-585102
... RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH THE
ORDER DATED 27.08.2021 PASSED BY III-ADDITIONAL
SESSIONS JUDGE, KALABURAGI IN CRI.REV.PETITION
NO.74/2021 AND ALSO QUASH THE ORDER DATED 27.07.2021
2
PASSED BY THE SPECIAL EXECUTIVE MAGISTRATE,
KALABURAGI IN NO.60/MAG/PO.AA./KA.NA./2021.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the
petitioner and the learned High Court Government Pleader
appearing for the respondent-State.
2. This petition is filed under Section 482 of
Cr.P.C., praying this Court to quash the order dated
27.08.2021 passed by III-Additional Sessions Judge,
Kalaburagi, in Criminal Revision Petition No.74/2021 and
further quash the order dated 27.07.2021 passed by the
Special Executive Magistrate, Kalaburagi, in
No.60/MAG/PO.AA./KA.NA/2021.
3. Factual matrix of the case is that the Police
Inspector of Roza Police Station, Kalaburagi, have
submitted Preventive Action Report against the petitioner
and others stating that on 24.06.2021 when the Police
Inspector was on patrolling duty in Bilalabad colony at
about 11.30 a.m., he received credible information that
the present petitioner along with others stated in the order
who being the rowdy sheeters of the said police station
was moving around forming groups and were creating an
atmosphere of fear among the general public disturbing
peace and tranquility and order. Based on the information,
proceedings were initiated in PAR.No.11/2021 under
Section 107 of Cr.P.C. The Special Executive Magistrate
passed the impugned order dated 27.07.2021 directing the
petitioner to execute the bond for a sum of Rs.5,00,000/-.
Being aggrieved by the said order, the petitioner
approached the Sessions Judge by filing petition in
Criminal Revision Petition No.74/2021. The Sessions Judge
dismissed the said revision petition. Hence, the present
petition is filed under Section 482 of Cr.P.C., to quash the
orders passed by both the Courts.
4. The main contention of the learned counsel
appearing for the petitioner before this Court is that when
the report is received from the Police Inspector, it is the
duty of the authority who intends to initiate proceedings
under Section 107 of Cr.P.C., to apply his mind and only
after subjective satisfaction should proceed against the
petitioner herein. The learned counsel referring to the
order passed by the authority i.e., the order dated
27.07.2021 submits that the authority except referring the
report received from the Police Inspector has not applied
his mind. The said order does not reflect subjective
satisfaction on the part of the authority. Hence, it requires
interference of this Court.
The learned counsel in support of his arguments has
relied upon the judgment of this Court in the case of Sri
Rustom Kerawala vs. State of Karnataka by the
Station House Officer, Varthur Police Station,
Bangalore reported in 2015 (1) KCCR 794 wherein this
Court discussed with regard to Sections 107, 111 and 482
of Cr.P.C., and observed that except filling up case
number, date and provision of law, the other things were
left blank and hence, invoked Section 482 of Cr.P.C.,
The learned counsel also relied upon the judgment of
this Court in the case of Shivaputrappa Gurshantappa
vs. State of Karnataka and another reported in 1977
Cri. L.J., 1369 wherein with regard to Section 107 of
Cr.P.C., held that the Executive Magistrate who receives
information, that any person is likely to commit a breach
of the peace is further required to formulate his opinion
that there is sufficient ground for proceedings against that
person. Only thereafter, he can issue a notice to show
cause why the said person should not be ordered to
execute a bond, for keeping peace for such period and
unless formulate opinion that it is required, there cannot
be any proceedings.
5. Per contra, the learned High Court Government
Pleader appearing for respondent-State would submit that
the petitioner is rowdy sheeter and there are twelve cases
against him. He is a rowdy element and he has caused
breach of peace in the locality. Hence, it does not require
interference in the order passed by the authority. The
learned Sessions Judge also while passing order in detail
discussed that initiation of proceedings against the
petitioner does not require interference.
6. Having heard the learned counsel appearing
for the petitioner and the learned High Court Government
Pleader appearing for respondent-State, this Court has to
look into the order dated 27.07.2021 and on perusal of the
entire order except referring to the receipt of report from
the Police Inspector, the authority has not passed any
order with regard to subjective satisfaction making him to
invoke Section 107 of Cr.P.C. There is no subjective
satisfaction whether the report submitted by the
Investigating Officer constitute an offence under Section
107 of Cr.P.C., and no such subjective satisfaction is found
in the order. The learned Sessions Judge also failed to take
note of this fact and lost sight of whether there is any
subjective satisfaction in the order passed by the Deputy
Commissioner of Police and Special Executive Magistrate,
Kalaburagi. The authority in the order dated 27.07.2021
has nowhere observed or formulated point with regard to
subjective satisfaction. Hence, in the absence of any
subjective satisfaction, there cannot be any prosecution
under Section 107 of Cr.P.C., on the ground of breach of
peace. Hence, I am of the opinion that the petitioner has
made out ground to invoke Section 482 of Cr.P.C., to
quash the impugned orders.
7. In view of the discussions made above, I pass
the following:
ORDER
The petition is allowed. The impugned order dated
27.07.2021 passed by the Special Executive Magistrate,
Kalaburagi, and the order dated 27.08.2021 passed by
III-Additional District and Sessions Judge, Kalaburagi, are
hereby quashed.
Sd/-
JUDGE
NB*
