Joshy Thomas vs Sub Divisional Magistrate
2026 Latest Caselaw 240 Ker

Kerala High Court

Joshy Thomas vs Sub Divisional Magistrate on 12 January, 2026

Author: C.S.Dias

Bench: C.S.Dias

CRL.MC NO. 189 OF 2026             1                 2026:KER:1626

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

    MONDAY, THE 12TH DAY OF JANUARY 2026 / 22ND POUSHA, 1947

                       CRL.MC NO. 189 OF 2026

        AGAINST THE ORDER/JUDGMENT DATED 19.11.2025 IN MC NO.1061

OF 2025 OF SUB DIVISIONAL COURT,FORT COCHIN

PETITIONER/ACCUSED :

            JOSHY THOMAS
            AGED 40 YEARS
            S/O. THOMAS, 7/167, CHAKKAMADAM HOUSE, MATTANCHERRY,
            ERNAKULAM, PIN - 682002

            BY ADVS.
            SMT.DHANYA S NAIR
            SHRI.RAHUL.S
            SHRI.MOHAMED AMEER M.
            SHRI.MOHAMMED RAZALI K.A
            SHRI.ABY GEORGE

RESPONDENT/COMPLAINANT :

    1       SUB DIVISIONAL MAGISTRATE
            X69V+2HV, FIRST FLOOR, KB JACOB RD, FORT KOCHI,
            KOCHI, KERALA, PIN - 682001

    2       STATION HOUSE OFFICER
            CENTRAL POLICE STATION, OLD RAILWAY STATION ROAD NEAR
            HIGH COURT ROAD, ERNAKULAM, KERALA,, PIN - 682018

    3       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,KOCHI, PIN - 682031

            SR.PP.SMT.SREEJA V


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12.01.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 189 OF 2026              2                   2026:KER:1626

                          C.S.DIAS, J.
              ---------------------------------------
                CRL.MC NO. 189 OF 2026
             -----------------------------------------
         Dated this the 12th day of January, 2026

                             ORDER

The petitioner is the counter petitioner in

M.C.No.1061/2025 pending before the Court of the Sub

Divisional Magistrate, Fort Cochin.

2. The petitioner states that he has been served

with Annexure-A1 order issued under Section 130 of the

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

short), directing him to appear before the Court and 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 130 of the BNSS.

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 under

Section 126 read with Section 130 of the BNSS, and the CRL.MC NO. 189 OF 2026 3 2026:KER:1626

law laid down by this Court in Moidu vs. State of Kerala

(1982 KHC 139). Therefore, Annexure-A1 order may be

quashed.

4. Heard; Smt. Dhanya S Nair, the learned Counsel

for the petitioner and Smt. Sreeja V, 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 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 CRL.MC NO. 189 OF 2026 4 2026:KER:1626

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-A1 order without

furnishing the substance of information. Instead, the Sub

Divisional Magistrate has merely stated that the petitioner CRL.MC NO. 189 OF 2026 5 2026:KER:1626

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 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 CRL.MC NO. 189 OF 2026 6 2026:KER:1626

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 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 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
SCB
 CRL.MC NO. 189 OF 2026             7                 2026:KER:1626

              APPENDIX OF CRL.MC NO. 189 OF 2026

PETITIONER ANNEXURES

Annexure A1            TRUE COPY OF THE PRELIMINARY ORDER DATED

19.11.2025 PASSED BY THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI IN M.C NO.