Kerala High Court
Shamsudheen vs The Sub Divisional Magistrate on 17 October, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:78825
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.MC NO. 7611 OF 2024
CRIME NO.263/2024 OF Pathanapuram Police Station, Kollam
PETITIONER/COUNTER PETITIONER:
SHAMSUDHEEN
AGED 49 YEARS
SON OF SHAHUL HAMEED, KARIMPALOOR, PATHANAPURAM
P.O., PATHANAPURAM VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT, PIN - 689695
BY ADVS.
P.M.ZIRAJ
IRFAN ZIRAJ
RESPONDENTS/PETITONER AND STATE/COMPLAINANT:
1 THE SUB DIVISIONAL MAGISTRATE
PUNALUR, KOLLAM DISTRICT, PIN - 691331
2 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF
KERALA AT ERNAKULAM, PIN - 682031
3 THE SUB INSPECTOR OF POLICE
PATHANAPURAM POLICE STATION, KOLLAM DISTRICT, PIN -
689695
BY ADV. SRI. C.N. PRABHAKARAN (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
17.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 7611 OF 2024 2
2024:KER:78825
BECHU KURIAN THOMAS, J
......................................................
Crl.MC.No.7611 of 2024
...................................................
Dated this the 17th day of October, 2024
ORDER
Petitioner is the counter-petitioner in M.C. No.187/2024 on
the files of the Sub Divisional Magistrate Court, Punaloor. 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 24.06.2024 has been issued, which is produced as Annexure 1
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.P.M Ziraj, the learned counsel for the
petitioner as well as Sri. C.N. Prabhakaran, 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
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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
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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-1 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-1 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
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judgments referred earlier.
7. In view of the above, the preliminary order issued in M.C.
No.187/2024 on the files of the Sub Divisional Magistrate Court,
Punaloor, 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
AJ
2024:KER:78825
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE ORDER DATED 24.6.2024 IN
M.C.NO.187/2024 ISSUED BY THE FIRST RESPONDENT
AGAINST THE PETITIONER ALONG WITH READABLE COPY
Annexure 2 TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO.263/2024 OF PATHANAPURAM POLICE STATION
Annexure 3 TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO.264/2024 OF PATHAPURAM POLICE STATION
Annexure 4 TRUE COPY OF THE ORDER IN MOIDU VS. STATE OF
KERALA REPORTED IN 1982 KLT 578(FB)
Annexure 5 TRUE COPY OF THE ORDER IN AHAMMED KABEER VS.
STATE OF KERALA REPORTED IN 2014(2) KLT SN5 (C
NO.9)
Annexure 6 TRUE COPY OF THE ORDER DATED 11.10.2023 IN
CRL.M.C 6684 OF 2023 OF THIS HONOURABLE COURT
Annexure 7 TRUE COPY OF THE INTERIM ORDER DATED 18.8.2023 IN
CRL.M.C 6687 OF 2023 OF THIS HONOURABLE COURT
Annexure 8 TRUE COPY OF THE INTERIM ORDER OF THIS HONOURABLE
COURT DATED 28.2.2024 IN CRL.M.APPL.NO.1/2024 IN
CRL.MC NO. 1998 OF 2024
