Kerala High Court
Saneer vs State Of Kerala on 18 September, 2023
CRL.MC NO. 6150 OF 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
CRL.MC NO. 6150 OF 2023
AGAINST THE ORDER/JUDGMENT MC 48/2023 OF SUB DIVISIONAL
MAGISTRATE, MANANTHODY
PETITIONER/S:
SANEERAGED 40 YEARSS/O. SUBAIR, KALLAMBETTY HOUSE
MUTTIL NORTH, WAYANAD DISTRICT,, PIN - 673122
BY ADVS.
D.VIMAL DEV
GIFFIN SHALOO
RESPONDENT/S:
1 STATE OF KERALAREPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
2 STATION HOUSE OFFICERKALPETTA POLICE STATION,
WAYANAD DISTRICT., PIN - 673121
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
RENJITH T.R PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 6150 OF 2023 2
P.V.KUNHIKRISHNAN, J
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Crl.M.C. No. 6150 of 2023
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Dated this the 18th day of September, 2023
ORDER
The above Crl.M.C. is filed challenging Annexure-A1
proceedings of the Sub Divisional Magistrate, Mananthavady in
MC No. 48/2023. The above case is initiated under Section
111 Cr.PC. It is the case of the petitioner that Annexure A1
notice does not contain the substances of the information 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 A1 notice would not show that
it is an order passed in tune with Section 107 r/w Section 111
Cr.PC. In Girish P's 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 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 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 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 A1 is not an order in tune
with Section 111 Cr.PC and 107 Cr.PC. It is only stated that
four crimes are charged by the various Police Stations against
the petitioner. 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 A1 proceedings is
unsustainable.
Therefore, this Criminal Miscellaneous case is allowed.
All further proceedings against the petitioner based on
Annexure A1 are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF CRL.MC 6150/2023
PETITIONER ANNEXURES
Annexure A1 THE COPY OF THE ORDER SIGNED AND
CERTIFIED BY THE SUB DIVISIONAL
MAGISTRATE MANANTHAVADY WAYANAD IN MC NO
48 OF 2023 DATED 25 04 2023
