Kerala High Court
Abdul Rasaq P.S vs State Of Kerala on 21 November, 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
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946
CRL.MC NO. 9274 OF 2024
CRIME NO.999/2023 OF Valappatanam Police Station, Kannur
MC NO.605 OF 2022 OF SUB DIVISIONAL MAGISTRATE COURT,
TALIPARAMBA
PETITIONER/ COUNTER PETITIONER/ ACCUSED :
ABDUL RASAQ P.S
AGED 42 YEARS
S/O.MUHAMMEDKUNJI, PARAKKAL HOUSE,
PAPPINISSERY, KANNUR DISTRICT,
PIN - 670561
BY ADVS.
M.A.AHAMMAD SAHEER
MUHAMMED YASIL
E.A.HARIS
FATHIMA SHERIN
RESPONDENT/ PETITIONERS/ STATE AND COMPLAINANT :
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 INSPECTOR OF POLICE
VALAPATTANAM POLICE STATION, KANNUR,
PIN - 670010
SRI. NOUSHAD K. A., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 9274 OF 2024
2
2024:KER:87626
BECHU KURIAN THOMAS, J.
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Crl.M.C.No.9274 of 2024
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Dated this the 21st day of November, 2024
ORDER
Petitioner is the counter-petitioner in M.C. No.605 of 2024 on
the files of the Sub Divisional Magistrate Court, Taliparamba. The said
proceedings have been initiated under Section 126 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short 'BNSS'). A preliminary order
has been issued, which is produced as Annexure A1 under section 130 of
BNSS, directing the petitioner to show cause why he should not be
ordered to execute a bond under Section 126 BNSS 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.Ahammad Saheer M.A., appearing for the
petitioner as well as Sri.Noushad K.A., the learned Public Prosecutor.
3. Petitioner is alleged to have involved in one crime as Crime
No.999 of 2023, that too alleging commission of offence under Section
379 of the Indian penal Code, 1860 and Section 20 of the Kerala
Protection of River Banks and Regulation of Removal of Sand Act, 2001. A
preliminary order Annexure A1 does not indicate as to the specific
instances of commission of breach of peace or disturbing the public
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tranquility for initiating such a procedure to compel the petitioner to
execute a bond for keeping peace.
4. 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.
5. 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
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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.
6. 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.
7. 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.
8. In view of the above, the preliminary order issued in M.C.
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No.605 of 2024 on the files of the Sub Divisional Magistrate Court,
Taliparamba, 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
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APPENDIX
PETITIONER'S ANNEXURES :
ANNEXURE A1 : CERTIFIED COPY OF THE ORDER DATED NIL IN
M.C.NO.605/2024 PASSED BY THE SUB DIVISIONAL
MAGISTRATE, TALIPARAMBA
ANNEXURE A2 : A TRUE COPY OF THE FIR NO.999/2023 OF THE
VALAPATTANAM POLICE STATION.
