Kerala High Court

Muhammed Shajahan U.P vs The Sub Divisional Magistrate, ... on 31 October, 2025

Author: C.S.Dias

Bench: C.S.Dias

                                                   2025:KER:82345
CRL.MC NO. 8305 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. 8305 OF 2025

   CRIME NO.2/2025 OF Chandera Police Station, Kasargod

        AGAINST THE    ORDER/JUDGMENT DATED     30.07.2025 IN   MC

NO.30 OF 2025 OF SUB DIVISIONAL MAGISTRATE, KANHANGAD

PETITIONER/COUNTER PETITIONER :

           MUHAMMED SHAJAHAN U.P,
           AGED 42 YEARS
           S/O OTTATHAYYIL SULAIMAN KUNHI, PUTHALATH
           HOUSE,BEERICHERI, SOUTH TRIKARIPUR, HOSDURG,
           KASARGOD, PIN - 671310


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




RESPONDENTS:

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

    2      THE INSPECTOR OF POLICE,
           CHANDERA POLICE STATION, KASARGOD DISTRICT, PIN -
           671310

    3      STATE OF KERALA,
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA AT ERNAKULAM, PIN - 682031
                                                         2025:KER:82345
CRL.MC NO. 8305 OF 2025

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OTHER PRESENT:

          PP.SRI.M.P.PRASANTH


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   31.10.2025,   THE   COURT   ON       THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                     2025:KER:82345
CRL.MC NO. 8305 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.30/2025 on the file of the Court of the Sub

Divisional Magistrate, Kanhangad.

2. The petitioner has been served with

Annexure-A1 preliminary order directing him to show

cause why he should not be ordered to execute a bond

for Rs.50,000/- with two solvent sureties for

Rs.50,000/- each 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-A1

order is unsustainable in law because the Sub

Divisional Magistrate has not set forth the substance of

the information in the said order, which is mandatory 2025:KER:82345 CRL.MC NO. 8305 OF 2025

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.B.Subhash, the learned Counsel

for the petitioner and Sri.M.P.Prasanth., 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.

2025:KER:82345 CRL.MC NO. 8305 OF 2025

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 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 2025:KER:82345 CRL.MC NO. 8305 OF 2025

Divisional Magistrate has passed Annexure-A1

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

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 2025:KER:82345 CRL.MC NO. 8305 OF 2025

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 23rd December 2014".

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 preliminary

order is set aside. The Sub Divisional Magistrate is 2025:KER:82345 CRL.MC NO. 8305 OF 2025

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/31/10/2025 2025:KER:82345 CRL.MC NO. 8305 OF 2025

PETITIONER ANNEXURES