Jouhar vs Sub Divisional Magistrate
2023 Latest Caselaw 10495 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945
                        CRL.MC NO. 6687 OF 2023
     AGAINST THE ORDER/JUDGMENT MC 285/2023 OF SUB DIVISIONAL
                    MAGISTRATE,PERINTHALMANNA
PETITIONER/COUNTER PETITIONER/ACCUSED NO.2:

          JOUHAR
          AGED 26 YEARS
          SON OF UMMER, VATTAPARAMBIL HOUSE, PARAKADAVU,
          CHEMMALASSERY, MALAPPURAM DISTRICT, PIN - 676311

          BY ADVS.
          P.M.ZIRAJ
          IRFAN ZIRAJ


RESPONDENTS/STATE/COMPLAINANT:
     1     SUB DIVISIONAL MAGISTRATE
           PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322

    2     STATE OF KERALA REP. BY PUBLIC PROSECUTOR
          HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM, PIN -
          682031

    3     STATION HOUSE OFFICER
          KOLATHUR POLICE STATION, MALAPPURAM DISTRICT, PIN -
          679338

          SMT.SREEJA.V.,PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
11.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO.6687 OF 2023
                              2

                  P.V.KUNHIKRISHNAN
             ---------------------
                  CRL.MC No.6687 of 2023
          ---------------------------
           Dated this the 11th day of October, 2023

                          ORDER

This Crl.MC is filed to quash Annexure 3 preliminary

order dated 20.07.2023 in M.C.No.285/2023 on the files of

the Sub Divisional Magistrate's Court, Perinthalmanna. The

above case is initiated under Section 111 Cr.PC. It is the

case of the petitioner that Annexure 3 notice issued by the

1st respondent does not contain the substances of the

information received by the 1st respondent for arriving at

the satisfaction contemplated under Section 107 Cr.PC. The

counsel relied the judgments of this Court in Girish P. and

others v. State of Kerala and another (2009 (4) KHC

929), Santhosh M.V and others vs. State of Kerala

and others (2014 KHC 522) and also Bejoy K.V vs

State of Kerala and Another (2015 (5) KHC 507).

2. Heard the learned counsel for the petitioner and

the learned Public Prosecutor.

3. A perusal of Annexure 3 notice would not show CRL.MC NO.6687 OF 2023

that it is an order passed in tune with Section 107 r/w

Section 111 Cr.PC. In Girish P' case (supra), the mandate

of Section 111 and Section 107 Cr.PC are mentioned. It will

be better to extract the relevant paragraph, which reads as

follows:-

"5. S.107 of Code of Criminal Procedure enables an executive Magistrate on receiving information that a person is likely to commit breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, to require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for such period not exceeding one year as the Magistrate thinks fit. S.111 mandates that when a Magistrate acting under S.107, deems it necessary to require any person to show cause, he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any required, the necessity to setforth the substance of the information' in the order under S.111 is not an empty formality and is with a purpose. It is to enable the person against whom the order is passed, to appear and show cause before the Magistrate that the allegations are not correct. Unless that information is furnished to the person against CRL.MC NO.6687 OF 2023

whom the order is passed, he cannot defend the allegation as against him.

6. Annexure I order issued by the Sub Divisional Magistrate does not disclose the substance of the information received by the Sub Divisional Magistrate on which he was satisfied that proceedings under S.107 is to be initiated. The fact that petitioners are involved in Crime No. 207/2009 by itself is not a ground, to initiate proceedings, under S. 107. Though past conduct may be a guide to initiate proceedings, on that ground alone proceedings cannot be initiated unless as stated by the Full Bench in Moidu's case (supra) there is an imminent breach of peace warranting initiation of proceedings under S.107 of Code of Criminal Procedure, 1973."

4. In Bejoy K.V's case (supra) also, this Court

considered the same point and relevant paragraph is

extracted hereunder:-

"17. Therefore, it is mandatory that an order issued under S.111 CrPC by a Sub Divisional Magistrate exercising jurisdiction under S.107 CrPC, to set forth the substance of information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and type of securities, if any are required. The order must also reflect that the Magistrate has assessed the truth of the information and the need for taking action under S.107 CrPC for preservation of peace and that CRL.MC NO.6687 OF 2023

thereupon he has passed such an order. An order issued under S.111 CrPC calling upon the person to show cause against execution of bond without disclosing therein the substance of information received and upon which satisfaction was arrived at by him, will not sustain in the eye of law. The order must contain all particulars relevant and sufficient to inform him about the accusation against him. This is because, the party calling upon must have to explain the circumstances against him or defend the proceedings and only on sufficient and satisfactory information being furnished, he will be able to answer the same. Therefore, the Sub Divisional Magistrate empowered with the authority to exercise the authority under S.107 CrPC to initiate proceedings must be vigilant and conscious while exercising the power and should bear in mind that the spirit envisaged by the Section is preservation of peace and public tranquillity. The Sub Divisional Magistrate must see that the information supplied to him proposing action, was not one intended with a view to satisfy his personal vendetta. He must bear in mind that with the exercise of the power a man is called upon to execute a bond undertaking to preserve peace and tranquility for a period specified in the proceedings and therefore, it is likely to cast a stigma upon such a person that he was instrumental in breaching the peace or disturbing the public tranquility. If such a stigma is allowed to be fell upon an innocent person without any basis, that stigma cannot be removed later and the person would not be relegated to his real status of innocence, ultimately CRL.MC NO.6687 OF 2023

when such person was found irresponsible for any such alleged acts."

5. In the light of the above dictum, I am of the

considered opinion that Annexure 3 is not an order in tune

with Section 111 Cr.PC and 107 Cr.PC. It is only stated that

a crime is charged by the Kolathur Police Station against

the counter petitioners. The substances of information

received and the details of the case are not narrated in the

notice. Therefore, I am of the considered opinion that

Annexure 3 proceedings is unsustainable.

Therefore, this Criminal Miscellaneous case is allowed.

All further proceedings against the petitioner based on

Annexure 3 are quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

bng CRL.MC NO.6687 OF 2023

APPENDIX OF CRL.MC 6687/2023

PETITIONER ANNEXURES

Annexure 1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 496 OF 2023 OF KOLATHUR POLICE STATION, MALAPPURAM DISTRICT

Annexure 2 TRUE COPY OF THE ORDER DATED 13.7.2023 IN CRL.M.C.NO.898 OF 2023 ON THE FILE OF DISTRICT AND SESSIONS COURT, MANJERI

Annexure 3 TRUE COPY OF THE PRELIMINARY ORDER DATED 20.7.2023 M.C.NO.285 OF 2023 ON THE FILE OF SUB DIVISIONAL MAGISTRATE COURT, PERINTHALMANNA ISSUED BY THE FIRST RESPONDENT

Annexure 4 TRUE COPY OF THE JUDGMENT OF THE FULL BENCH OF THIS HONOURABLE COURT REPORTED IN MOIDU VS. STATE OF KERALA IN 1982 KLT 578(F.B.)

Annexure 5 TRUE COPY OF THE JUDGMENT OF THE FULL BENCH OF THIS HONOURABLE COURT IN AHAMMED KABEER VS. STATE OF KERALA DATED 28.2.2014 REPORTED AS 2014(2) KLT SN 5(C NO.9)