Kerala High Court
Sumesh Kumar G vs State Of Kerala on 27 October, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:80298
CRL.MC NO. 6549 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 27TH DAY OF OCTOBER 2025 / 5TH KARTHIKA, 1947
CRL.MC NO. 6549 OF 2025
CRIME NO.750/2016 OF Devikulam Police Station, Idukki
AGAINST THE ORDER/JUDGMENT DATED IN MC NO.22 OF 2025 OF
SUB DIVISIONAL MAGISTRATE,DEVIKULAM
PETITIONER/1ST ACCUSED:
SUMESH KUMAR G
AGED 44 YEARS
S/O LATE GOPALAKRISHNAN NAIR RESIDING AT SURENDRA
VILASAM HOUSE, DEVIKULAM KARA KDH VILLAGE IDUKKI,
PIN - 685613
BY ADVS.
SHRI.NOBLE MATHEW
SMT.KUMARI SANGEETHA S.NAIR
SMT.DEEPA NOBLE
RESPONDENTS/STATE & 6TH ACCUSED:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 THE CIRCLE INSPECTOR OF POLICE
DEVIKULAM POLICE STATION, DEVIKULAM P.O, IDUKKI,
PIN - 685613
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CRL.MC NO. 6549 OF 2025
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3 REVENUE DIVISIONAL OFFICER
DEVIKULAM CIRCULAR ROAD, DEVIKULAM, TALUK, KANNAN
DEVAN HILLS, IDUKKI, PIN - 685613
4 MILTON
AGED 38 YEARS
S/O CHARLIE KDH VILLAGE , DEVIKULAM, IDUKKI, PIN -
685613
SRI.C.S.HRITHWIK, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.10.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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3
C.S.DIAS,J.
====================
Crl. M.C.No.6549 of 2025
------------------------------------ --
Dated this the 27th day of October, 2025
ORDER
The petitioner is the counter petitioner in M.C.No.22
of 2025 pending before the Court of the Sub Divisional
Magistrate, Devikulam.
2. The petitioner has been served with Annexure-
A3 preliminary order calling upon him to show cause why
he should not be ordered to execute a bond for
Rs.1,00,000/- with two solvent sureties for the like
amount to keep peace for a period of one year as
contemplated under Section 126 read with Section 130 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS',
in short).
3. The petitioner contends that Annexure-A3 order
is unsustainable in law because the Sub Divisional
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Magistrate has not set forth the substance of the
information in 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-A3 order
may be quashed.
4. Heard; the learned Counsel for the petitioner
and 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
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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
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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-A3 preliminary order
without furnishing the substance of information. Instead,
the Sub Divisional Magistrate has merely stated that the
petitioner is involved in a crime 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
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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".
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In light of the principles laid down in the afore-cited
decisions and the fact that substance of information is
conspicuously absent in Annexure-A3 preliminary order, I
am satisfied that the Crl.M.C. is to be allowed.
Accordingly Annexure-A3 preliminary 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
dkr
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PETITIONER ANNEXURES
Annexure A-1 TRUE COPY OF THE JUDGMENT OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT DEVIKULAM IN
CC NO. 254/17 IN CRIME NO. 749/16 DATED
30-11-2022
Annexure A-2 TRUE COPY OF THE JUDGMENT OF THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT
DEVIKULAM IN CC. NO. 253/2017 IN CRIME
NO. 750/16 DATED 08-03-2022
Annexure A-3 TRUE COPY OF THE ORDER OF THE RDO DATED
27-06-2025
