Abdul Salam Va vs State Of Kerala
2025 Latest Caselaw 10363 Ker

Kerala High Court

Abdul Salam Va vs State Of Kerala on 31 October, 2025

Author: C.S.Dias

Bench: C.S.Dias

                                                     2025:KER:82344
CRL.MC NO. 8543 OF 2025

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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

  FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947

                     CRL.MC NO. 8543 OF 2025

    CRIME NO.505/2025 OF Thadiyittaparamba Police Station,

                            Ernakulam

        AGAINST THE ORDER/JUDGMENT DATED IN MC NO.130 OF 2025 OF

SUB DIVISIONAL MAGISTRATE,MUVATTUPUZHA

PETITIONER/COUNTER PETITIONER:

            ABDUL SALAM VA,
            AGED 53 YEARS
            S/O ABDUL KHADER, VARANATTU (H), SOUTH VAZHAKULAM
            PO, KALLELI, ERNAKULAM, PIN - 683105


            BY ADVS.
            SHRI.K.S.ARUN KUMAR
            SMT.AMRUTHA K P
            SHRI.VIJAY SANKAR V.H.
            SHRI.JERIN JOSEPH
            SMT.AMRUTHA P.S.
            SHRI.DEVARAJ SUBRAMANIAN




RESPONDENT/STATE/COMPLAINANT:

    1       STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,ERNAKULAM DISTRICT, PIN - 682031

    2       SUB DIVISIONAL MAGISTRATE
            OFFICE OF THE SUB DIVISIONAL MAGISTRATE,
                                                 2025:KER:82344
CRL.MC NO. 8543 OF 2025

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          PUZHAKKARAKAAVU ROAD, THOTTUMKALPEEDIKA,
          MUVATTUPUZHA, ERNAKULAM ( IS IMPLEADED AS
          ADDITIONAL 2ND RESPONDENT AS PER ORDER DATED
          31.10.2025 IN CRL.M.A NO.2/2025 IN CRL.M.C NO.8543
          OF 2025 )



OTHER PRESENT:

          SR.PP.SMT.SEETHA S


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
31.10.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                   2025:KER:82344
CRL.MC NO. 8543 OF 2025

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           Dated this the 31st day of October, 2025

                             ORDER

The petitioner is the counter petitioner in

M.C.No.130/2025 on the file of the Court of the Sub

Divisional Magistrate, Muvattupuza.

2. The petitioner has been served with Annexure-I

order directing him to appear before the Sub Divisional

Magistrate and execute a bond for Rs.50,000/- with two

solvent sureties for the like amount to keep peace for a

period of one year as contemplated under Section 130 of

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

short).

3. The petitioner contends that he was not served

with a preliminary order under Section 126 of the BNSS.

Even in Annexure-I order the Sub Divisional Magistrate

has not set forth the substance of the information, which

is mandatory under Section 126 read with Section 130 of

the BNSS, and the law laid down by this Court in Moidu 2025:KER:82344 CRL.MC NO. 8543 OF 2025

vs. State of Kerala (1982 KHC 139). Therefore, Annexure-

A1 order may be quashed.

4. Heard; Sri.K.A. Arun Kumar, the learned

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

Senior 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 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 2025:KER:82344 CRL.MC NO. 8543 OF 2025

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 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-1 order 2025:KER:82344 CRL.MC NO. 8543 OF 2025

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

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:

2025:KER:82344 CRL.MC NO. 8543 OF 2025

"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 23rd December 2014".

In light of the principles laid down in the afore-

cited decisions and the fact that the petitioner was not

served with preliminary order under Section 126 of the

BNSS and the substance of information is conspicuously

absent in Annexure-I order, I am satisfied that the

Crl.M.C. is to be allowed. Accordingly, Annexure-I order

is set aside. The Sub Divisional Magistrate is directed to 2025:KER:82344 CRL.MC NO. 8543 OF 2025

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/31/10/2025 2025:KER:82344 CRL.MC NO. 8543 OF 2025

PETITIONER ANNEXURES

Annexure-I A TRUE COPY OF THE ORDER DATED 04/08/2025 PASSED BY THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA Annexure-II A TRUE COPY OF FIR DATED 04/07/2025 IN CRIME NO. 505/2025 OF THE THADIYITTAPARAMB POLICE STATION Annexure-III A TRUE COPY OF FIR DATED 15/07/2025 IN CRIME NO. 532/2025 OF THE THADIYITTAPARAMB POLICE STATION