[Cites 10, Cited by 0]

Kerala High Court

Rifayi K.M vs The Sub Divisional Magistrate, ... on 4 December, 2025

Author: C.S.Dias

Bench: C.S.Dias

                                                        2025:KER:93774
CRL.MC NO. 11032 OF 2025

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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

  THURSDAY, THE 4TH DAY OF DECEMBER 2025 / 13TH AGRAHAYANA,

                                   1947

                         CRL.MC NO. 11032 OF 2025

        AGAINST    THE    ORDER/JUDGMENT   DATED    20.11.2025   IN   MC

NO.160 OF 2025 OF SUB DIVISIONAL MAGISTRATE, KANHANGAD

PETITIONER/COUNTER PETITIONER:

            RIFAYI K.M
            AGED 40 YEARS
            S/O MUHAMMED KUNHI, PUNJAVI KADAPPURAM,
            KANHAGANGAD SOUTH, PIN - 671531


            BY ADVS.
            SRI.P.K.SUBHASH
            SMT.JENI JOHN




RESPONDENTS/RESPONDENTS:

    1       THE SUB DIVISIONAL MAGISTRATE, KANHANGAD,
            OFFICE OF THE SUB DIVISIONAL MAGISTRATE KANHANGAD,
            KASARAGOD DISTRICT, PIN - 671315

    2       THE INSPECTOR OF POLICE
            HOSDURG POLICE STATION, KASARGOD DISTRICT, PIN -
            671315

    3       THE INSPECTOR OF POLICE
            CHEEMANI POLICE STATION, PIN - 671313
                                                          2025:KER:93774
CRL.MC NO. 11032 OF 2025

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     4    DEPUTY SUPERINTENDENT OF POLICE
          OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE,
          KANHANGAD, KASARGOD, PIN - 671315

     5    STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA AT ERNAKULAM, PIN - 682031


          SR.PP. SMT. SEETHA S.


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   04.12.2025,   THE   COURT   ON       THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                  2025:KER:93774
CRL.MC NO. 11032 OF 2025

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         Dated this the 4th day of December, 2025

                            ORDER

The petitioner is the counter petitioner in

M.C.No.160/2025 on the file of Court of the Sub

Divisional Magistrate, Kanhangad.

2. The petitioner has been served with Annexure-

A1 preliminary order issued under section 130 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', in

short) directing the petitioner to show cause why he

should not be ordered to execute a bond for Rs.50,000/-

with two solvent sureties for the like sum to keep peace

for a period of one year as envisaged under Section 126

read with Section 130 of the BNSS.

3. The petitioner contends that he has not been

served with a preliminary order. Furthermore, a

reading of Annexure A1 order substantiates that the

substance of the information is conspicuously absent in 2025:KER:93774 CRL.MC NO. 11032 OF 2025

the said order, which is mandatory under Section 126

read with Section 130 of the BNSS, and the law laid

down by this Court in Moidu vs. State of Kerala (1982

KHC 139). Therefore, Annexure-A1 order may be

quashed.

4. Heard; Sri.P.K.Subhash, the learned Counsel

for the petitioner and Smt. Seetha S., the learned Public

Prosecutor.

5. In the above context it is necessary to refer to

Sections 126 and 130 of the BNSS, which corresponds to

the erstwhile Sections 107 and 111 of the Code of

Criminal Procedure,which reads as follows:

126. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the 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 tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond or bail bond for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any 2025:KER:93774 CRL.MC NO. 11032 OF 2025

Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.

130. When a Magistrate acting under section 126, section 127, section 128 or section 129, deems it necessary to require any person to show cause under such section, 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 of sureties, after considering the sufficiency and fitness of sureties".

6. The above provisions explicitly postulates that

the Executive Magistrate, on receiving information that

any person is likely to commit a breach of peace, disturb

the public tranquility or does any wrongful act, and that

there are sufficient grounds to proceed against him, the

Executive Magistrate may, in the manner provided under

Chapter IX of the BNSS, require such person to show

cause why he should not be ordered to execute a bond or

bail bond for his good behavior for such period, not

exceeding one year provided an order in writing is 2025:KER:93774 CRL.MC NO. 11032 OF 2025

passed, setting forth the substance of information

received, the amount of bond to be executed, the term

for which it is to be in force and the number of sureties.

7. It is the petitioner's case that, the Sub

Divisional Magistrate has passed Annexure-A1 order

without furnishing the substance of information. Instead,

the Sub Divisional Magistrate has merely stated that the

petitioner is involved in crimes registered by the Police.

8. In Jayanth K. C. v. State of Kerala (2025 KHC

1591), this Court has held that mere registration of a

crime and an anticipation of possible violence, without

imminent threat to peace, is insufficient to justify an

order under Section 111 of the Cr.P.C.

9. Similarly in Girish P. and others v. State of

Kerala and another (2009 (4) KHC 929), this Court has

held that unless the substance of information is stated in

an order passed under Section 111 of the Cr.P.C, the 2025:KER:93774 CRL.MC NO. 11032 OF 2025

order passed under Section 107 of the Cr.P.C., is bad in

law.

10. A Full Bench of the Bombay High Court in

Farhan Nasir Khan and others v. State of Maharashtra

and others (2020 KHC 3064) has succinctly held as

follows:

"9.To put it simply, the requirement of law is that the Magistrate has to form an opinion in writing contemplated by S.111 of the Cr.P.C. and thereafter proceed to issue a show cause notice as contemplated by S.107 and along with the show cause notice annex the opinion. But, in a given case, it may happen that the language in which the order/opinion contemplated under S.111 is not comprehensible to the noticee, then the notice may integrate the order/opinion and convey to the noticee in the language which the noticee comprehends.

10. The purpose of the law is that the noticee is to be made known the factual matrix comprising either the complaint or the information received by the Magistrate and the reasons for the opinion formed by the Magistrate.

10 (a). Since we find no contra opinion in Suleman Adam's case (supra) vis-a-vis the opinion taken by the learned Single Judge or by the Division Bench of this Court in the 8 decisions referred to in paragraph 3 of the order dated 23rd December, 2014, we return the reference unanswered for the reason the law is well settled and captured in the eight decisions noted in paragraph 3 of the order of reference dated 23 rd December 2014".

2025:KER:93774 CRL.MC NO. 11032 OF 2025

In light of the principles laid down in the afore-

cited decisions and the fact that substance of information

is conspicuously absent in Annexure-A1 preliminary

order, I am satisfied that the Crl.M.C. is to be allowed.

Accordingly Annexure-A1 order is set aside. The Sub

Divisional Magistrate is directed to reconsider the

matter as per the mandate under Sections 126 and 130

of the BNSS and in accordance with law.

SD/-

C.S.DIAS, JUDGE rmm/4/12/2025 2025:KER:93774 CRL.MC NO. 11032 OF 2025

APPENDIX OF CRL.MC NO. 11032 OF 2025