[Cites 9, Cited by 0]
Kerala High Court
Ismail Fazis vs The Sub Divisional Magistrate, ... on 19 January, 2026
Author: C.S.Dias
Bench: C.S.Dias
CRL.MC NO. 474 OF 2026
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2026:KER:4304
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 19TH DAY OF JANUARY 2026 / 29TH POUSHA, 1947
CRL.MC NO. 474 OF 2026
AGAINST THE ORDER/JUDGMENT DATED 07.01.2026 IN MC NO.178 OF
2025 OF SUB DVL.MAGISTRATE,KASARGOD
PETITIONER/S:
ISMAIL FAZIS, AGED 34 YEARS
S/O. HANEEFA, THAIVALAPPU HOUSE, ALAMPADY, MUTTATHODY,
PIN - 671123
BY ADVS.
SRI.P.K.SUBHASH
SMT.JENI JOHN
RESPONDENT/S:
1 THE SUB DIVISIONAL MAGISTRATE, KASARGOD
OFFICE OF THE SUB DIVISIONAL MAGISTRATE KASARGOD,
KASARAGOD DISTRICT., PIN - 671121
2 THE INSPECTOR OF POLICE, VIDYNAGAR POLICE STATION,
KASARGOD DISTRICT, PIN - 671123
3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA AT ERNAKULAM, PIN - 682031
OTHER PRESENT:
SR PP SMT SEETHA S
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.01.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 474 OF 2026
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C.S.DIAS, J.
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Crl.M.C. No. 474 OF 2026
--------------------------------------------
Dated this the 19th day of January, 2026
ORDER
The petitioner is the counter petitioner in
M.C.No.178/2025 on the file of the Court of the Sub Divisional
Magistrate, Kasaragod.
2. The petitioner has averred in the Crl.M.C. that he
has been served with Annexure-A1 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, who
in turn have been directed to deposit Rs.25,000/- each to
maintain peace for a period of one year as envisaged under
Section 126/129 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 under Section 126 read with
Section 130 of the BNSS, and the law laid down by this Court
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in Moidu vs. State of Kerala (1982 KHC 139). Therefore,
Annexure-A1 order may be quashed.
4. I have 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
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".
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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 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
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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.
In light of the principles laid down in the afore-cited
decisions and the fact that the 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 directed to re-consider the matter as per the
mandate under Sections 126 and 130 of the BNSS and in
accordance with law.
sd/-
C.S.DIAS, JUDGE
rkc/19.01.26
CRL.MC NO. 474 OF 2026
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APPENDIX OF CRL.MC NO. 474 OF 2026
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER DATED 07.01.2026 IN MC
NO. 178/2025 ISSUED BY THE 1ST RESPONDENT
