Kerala High Court
Aboobacker Sinan vs State Of Kerala on 2 August, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.MC NO. 5883 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN MC NO.5 OF 2024 OF
SUB DVL.MAGISTRATE, KASARGOD
....................................
PETITIONER/COUNTER PETITIONER :
ABOOBACKER SINAN
AGED 24 YEARS
SON OF ABDULLA BERKA HOUSE,
CHERKALA, CHENGALA VILLAGE,
KASARAGOD DISTRICT, PIN - 671 541.
BY ADVS.
C.C.ANOOP
R.ANAS MUHAMMED SHAMNAD
RESPONDENT/PETITIONER :
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031.
2 THE STATION HOUSE OFFICER
VIDYANAGAR POLICE STATION,
KASARAGOD DISTRICT, PIN - 671 123.
SRI. ASHI M.C (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC 5883/2024
2
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.5883 of 2024
...................................................
Dated this the 2nd day of August, 2024
ORDER
Petitioner is the counter-petitioner in M.C. No.5/2024 on the files of the
Sub Divisional Magistrate Court, Kasaragod. The said proceedings have
been initiated under Section 107 of the Code of Criminal Procedure,
1973 (for short 'Cr.P.C'). A preliminary order dated 08.02.2024 has been
issued, which is produced as Annexure A1 under section 111 of Cr.P.C,
directing the petitioner to show cause why he should not be ordered to
execute a bond under Section 107 Cr.P.C to keep peace for a period of
one year. Petitioner challenges the aforesaid show cause notice pointing
out that there is an inherent infirmity in the impugned order of the Sub
Divisional Magistrate.
2. I have heard Sri.C.C.Anoop, the learned counsel for the petitioner as
well as Sri.Ashi M.C., the learned Public Prosecutor.
3. In Girish P. and Others v. State of Kerala and Another (2009 (4) KHC
929) it has been observed that Section 111 Cr.P.C mandates that a
Magistrate acting under Section 107 Cr.P.C must of necessity set forth
the substance of the information in the order under Section 111 to
enable the party against whom such an order is proposed to be issued to
appear and show cause against the allegations. It was further held that
unless such information is furnished to the person against whom the
order is proposed to be issued, he cannot defend the allegation.
4. In the Full Bench decision in Moidu v. State of Kerala (1982 KLT 578),
it was observed that the involvement in a criminal case by itself, is not
a guide to initiate proceedings under Section 107 and an imminent
breach of peace warranting initiation of such a proceeding is what is
required. The following observations from the aforesaid judgment are
relevant "Regard being bad to the object of S.107 of the Code and
particularly the fact that it is not intended as a punitive action but
preventive even where punitive action is taken preventive action may be
called for if the character of the information is such that the Magistrate
would be justified in acting on such information. As a rule of prudence
it may be said that information about events which are the subject
matter of pending prosecutions may not by themselves be relied on by
the Magistrate as information sufficient to warrant an order under S.107
of the Code. Ultimately it would be for the Magistrate to consider
whether on an overall consideration of the facts available to him by way
of information he could form the opinion that the person against whom
he was proposing to take action under S.107 was likely to cause
imminent breach of the peace or disturb the public tranquility.
5. Similarly in Bejoy K.V. v. State of Kerala and Another (2015 (5) KHC
507) this Court has observed that the order under Section 111 Cr.P.C
must reflect that the Magistrate has assessed the truth of the information
received by him and there is an imminent need for taking action to
preserve peace. It was also observed that without disclosing the
substance of the information received, upon which the satisfaction was
arrived at, cannot sustain the order in the eye of law.
6. A perusal of Annexure-A1 order reveals that the substance of the
information received by the Magistrate has not been clearly delineated in
the order. Though there is reference to three criminal cases and there
are vague references to the counter-petitioner being involved in acts of
violence causing a breach of public peace, there is nothing specific in
the information that is recorded in the impugned order. It is evident that
Annexure-A1 order does not satisfy the requirements laid down in the
various judgments of this Court including those in Moidu v. State of
Kerala (supra) and other judgments referred earlier.
7. In view of the above, the preliminary order issued in M.C. No.5/2024 on
the files of the Sub Divisional Magistrate, Kasargod, against the
petitioner is bereft of any legal backing and is liable to be quashed.
Ordered accordingly.
Crl.M.C is allowed as above.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/06/08/2024
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE PRELIMINARY ORDER DATED
8.2.2024 IN M.C. NO.5/2024 PASSED BY THE SUB
DIVISIONAL MAGISTRATE COURT, KASARAGOD.
ANNEXURE A2 THE TRUE COPY OF THE FIRST INFORMATION REPORT
IN CRIME NO. 699/2017 OF VIDYANAGAR POLICE
STATION.
ANNEXURE A3 THE TRUE COPY OF THE FIRST INFORMATION REPORT
IN CRIME NO. 476/2018 OF VIDYANAGAR POLICE
STATION.
ANNEXURE A4 THE TRUE COPY OF THE FIRST INFORMATION REPORT
IN CRIME NO. 709/2023 OF VIDYANAGAR POLICE
STATION.
