Kerala High Court
Fasal.P vs State Of Kerala on 18 September, 2023
CRL.MC NO. 6475 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. 6475 OF 2023
AGAINST THE ORDER/JUDGMENT MC 97/2023 OF SUB DIVISIONAL
MAGISTRATE COURT, TALIPARAMBA
PETITIONER/S:
FASAL.PAGED 26 YEARSS/O. ISMAIL, AGED 26 YEARS,
PONNANKAL HOUSE, CHIRAKKAL AMSOM, BALAN KINAR,
KATTAMBALLY, KANNUR-, PIN - 670008
BY ADVS.
I.V.PRAMOD
SAIRA SOURAJ P.
RESPONDENT/S:
1 STATE OF KERALAREPRESENTED BY PUBLIC PROSECUTOR HIGH
COURT OF KERALA, PIN - 682031
2 SUB DIVISIONAL MAGISTRATE,THALIPARAMBA, KANNUR
DISTRICT-, PIN - 670141
3 STATION HOUSE OFFICER,VALAPATTANAM POLICE STATION
KANNUR DISTRICT-, PIN - 670001
SMT.SREEJA V.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. 6475 OF 2023 2
P.V.KUNHIKRISHNAN, J
---------------------------------------
Crl.M.C. No. 6475 of 2023
--------------------------------------
Dated this the 18th day of September, 2023
ORDER
The petitioner is the counter petitioner in MC No. 97/2023
of the Sub-Divisional Magistrate, Taliparamba, which is
registered under Sec.107 Cr.P.C. Annexure-A1 is the
preliminary order. This Crl.M.C. is filed to quash the same. It is
the case of the petitioner that Annexure A1 notice issued by
the 2nd respondent does not contain the substances of the
information received by the 2nd 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 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
two crimes are charged by the Valapattanam Police Station
against the counter 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 6475/2023
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE PRELIMINARY ORDER IN
M.C. 97/2023 OF SDM, THALIPARAMBA DATED
25/4/2023
