Sreekumaran Nair @ Mannoor ... vs State Of Kerala
2022 Latest Caselaw 5368 Ker

               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

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

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

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