Kerala High Court
Sarath vs State Of Kerala on 7 November, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.MC NO. 5088 OF 2024
1
2024:KER:85468
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.MC NO. 5088 OF 2024
MC NO.80 OF 2023 OF SUB DIVISIONAL COURT, FORT KOCHI
PETITIONER/ COUNTER PETITIONER :
SARATH,
AGED 27 YEARS
SON OF RAGHU, ATTATHARA HOUSE,
EVERGREEN, ILLITHODU, MALAYATOOR VILLAGE,
ERNAKULAM DISTRICT, PIN - 683587
BY ADVS.
DENIZEN KOMATH
GANGA S.
DEAN DENIZEN KOMATH
MEGHA MADHAVAN
RAMZY BIN O.A.
RESPONDENT/ PETITIONER & STATE :
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031
2 STATION HOUSE OFFICER,
KALADY POLICE STATION, ERNAKULAM,
PIN - 683 574
SMT. SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 5088 OF 2024
2
2024:KER:85468
BECHU KURIAN THOMAS, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=
Crl.M.C.No.5088 of 2024
=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 7th day of November, 2024
ORDER
Petitioner is the counter-petitioner in M.C. No.80/2023 on the
files of the Sub Divisional Magistrate Court, Fort Kochi. 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
27.04.2023 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 Adv.Denizen Komath, appearing for the
petitioner as well as Smt.Sreeja V., 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
CRL.MC NO. 5088 OF 2024
2024:KER:85468
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
CRL.MC NO. 5088 OF 2024
2024:KER:85468
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 two 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.80/2023 on the files of the Sub Divisional Magistrate Court, Fort
Kochi, 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
RKM
CRL.MC NO. 5088 OF 2024
2024:KER:85468
PETITIONER'S ANNEXURES :
Annexure-A1 TRUE PHOTOCOPY OF THE ORDER DATED
27.04.2023 ISSUED FROM THE OFFICE OF THE
SUB DIVISIONAL MAGISTRATE, FORT KOCHIIN
Annexure-A2 TRUE PHOTOCOPY OF FIR IN CRIME NUMBER
1045/2019 OF 2ND RESPONDENT'S POLICE
STATION
Annexure-A3 TRUE PHOTOCOPY OF FIR IN CRIME NUMBER
1190/2019 OF 2ND RESPONDENT'S POLICE
STATION
Annexure-A4 TRUE CERTIFIED COPY OF SUMMONS ISSUED
UNDER SECTION 62 OF THE CR PC, IN MC
NO.80/2023 SERVED ON THIS PETITIONER,
DATED 18.05.2024
