Kerala High Court

Basheer Moozhiyaan vs State Of Kerala on 22 October, 2025

Author: C.S.Dias

Bench: C.S.Dias

CRL.MC NO. 8229 OF 2025
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                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

    WEDNESDAY, THE 22ND DAY OF OCTOBER 2025 / 30TH ASWINA, 1947

                        CRL.MC NO. 8229 OF 2025

     CRIME NO.368/2025 OF KARIPUR POLICE STATION, Malappuram

     AGAINST THE ORDER/JUDGMENT DATED 13.08.2025 IN MC NO.245 OF

2025 OF SUB DIVISIONAL MAGISTRATE,PERINTHALMANNA

PETITIONER/S:

          BASHEER MOOZHIYAAN,
          AGED 55 YEARS
          S/O. HASSAN MOOZHIYAN,KARUVANPATTA HOUSE,
          KARIPUR.PO.MALAPPUARM, PIN - 673638


          BY ADVS.
          SRI.K.K.DHEERENDRAKRISHNAN
          SMT.N.P.ASHA
          SHRI.ABDUSSAMAD K.K.




RESPONDENT/S:

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



OTHER PRESENT:

          SR PP SRI C S HRITHWIK


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.10.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 8229 OF 2025
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                               C.S.DIAS, J.
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                  Crl.M.C. No.8229 OF 2025
                   -----------------------------------------
             Dated this the 22nd day of October, 2025

                                ORDER

The petitioner is the counter petitioner in

M.C.No.245/2025 pending before the Court of the Sub

Divisional Magistrate, Perinthalmanna.

2. The petitioner has been served with Annexure-I

preliminary order calling upon him to show cause why he

should not be ordered to 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 126 read

with Section 130 of the Bharatiya Nagarik Suraksha Sanhita,

2023 ('BNSS', in short). The petitioner contends that

Annexure-I 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 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-I order may be quashed. CRL.MC NO. 8229 OF 2025

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3. Heard; Sri.K.K.Dheerendrakrishnan, the learned

Counsel for the petitioner and Sri.C.S.Hrithwik, the learned

Public Prosecutor.

4. 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 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".

5. The above provisions explicitly postulates that the CRL.MC NO. 8229 OF 2025

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Executive Magistrate, on receiving information that any

person is likely to commit a breach of peace, disturb the public

tranquility, do any wrongful act and that there are sufficient

grounds to proceed against him 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 as the Executive Magistrate may think fit, provided the

Executive Magistrate passes an order in writing, setting forth

the substance of information received, the amount of bond to

be executed, the terms for which it is to be in force and the

number of sureties.

6. It is the petitioner's case that, the Sub Divisional

Magistrate has passed Annexure-I preliminary order under

Section 130 of the BNSS 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.

7. A Constitutional Bench of the Hon'ble Supreme Court

in Madhu Limaye and Another v. Sub Divisional CRL.MC NO. 8229 OF 2025

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Magistrate, Monghyr and Others (1970 KHC 635) has

elaborately interpreted Section 107 of the Code of Criminal

Procedure, in the following manner:

"33. The gist of S.107 may now be given. It enables certain specified classes of Magistrates to make an order calling upon a person to show - cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction. The Section goes on to empower even a Magistrate not empowered to take action, to record his reason for acting, and then to order the arrest of the, person (if not already in custody or before the Court) with a view to sending him before a Magistrate empowered to deal with the case, together with a copy of his reason. The Magistrate before whom such a person is sent may in his discretion detain such person in custody pending further action by him.

34. The Section is aimed at persons, who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquility. This is an instance of preventive justice which the Courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquility. For this purpose Magistrate are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the jurisdiction for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of offences.

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35. Both the Sections are counter - parts of the same policy, the first applying when by reason of the conviction of a person, his past conduct leads to an apprehension for the further and the second applying where the Magistrate, on information, is of the opinion that unless prevented from so acting, a person is likely to act to the detriment of the public peace and public tranquility. The argument is that these Sections (more particularly S.107) are destructive of freedom of the individual guaranteed by Art.19(1)(a), (b), (c) and (d) and are not saved by the restrictions contemplated by Clauses (2) to (5) of the Article. It is also contended that there are no proper procedural safeguards in the Sections that follow.

Before we deal with these contentions it is necessary to glance briefly at S.112-119 of Division B and S.120-126A of Division C.

36. We have seen the provision of S.107. That Section says that action is to be taken 'in the manner hereinafter provided' and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to its own procedure and not recording to the whim of the Magistrate concerned. It behaves us, therefore, to emphasis the safeguards built into the procedure because from them will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public.

37. The procedure beings with S.112. It requires that the Magistrate acting under S.107 shall make an order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, character and class of sureties (if any) required. Since the person to be proceeded against has to show - cause, it is but natural that he must know the grounds for apprehending a breach of the peace of disturbance of the public tranquility at his hands. Although the Section speaks of the 'substance of the information' it does not mean the order should not be full. It may not repeat the information bodily but it must give propose notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word 'substance' means the essence of the most important parts of the information." CRL.MC NO. 8229 OF 2025

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(emphasis given)

8. Likewise, 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 23 rd 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".

9. This Court in Jayanth K. C. v. State of Kerala (2025

KHC 1591) 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. Similarly in Girish P. and others v. State of Kerala

and another (2009 (4) KHC 929), this Court has held that CRL.MC NO. 8229 OF 2025

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unless the substance of information is stated in an order

passed under Section 111 of the Cr.P.C, the proceeding under

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

In light of the principles laid down in the afore-cited

decisions and the fact that substance of information is