Allowed

Femina v. the Sub Divisional Magistrate

Kerala HC10 Aug 2016Crl.MC/1551/2016

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an order issued under Section 107 Cr.P.C. requiring petitioners to maintain a bond to keep the peace. The Court held that the Sub Divisional Magistrate failed to satisfy the requirements of Section 111 Cr.P.C. regarding tangible evidence of impending breach of peace.

What did the court decide?

The impugned order dated 21.10.2015 passed by the Sub Divisional Magistrate, Kozhikode under Sections 107 and 111 Cr.P.C. is quashed. All proceedings thereunder against the petitioners are discharged.

Femina Vs the Sub Divisional Magistrate — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938

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Crl.MC.No. 1551 of 2016

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MC 384/2015 OF SUB DIVISIONAL MAGISTRATE COURT, KOZHIKODE -------------

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PETITIONER(S):

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1. FEMINA, D/O HUSAIN, KAINBILI HOUSE, THATTATHIL, PUTHOORMADHAM, PANTHEERANKAVU.

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2. HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.

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3. SIRAJ,

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S/O HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.

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4. SHIHAB S/O HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.

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5. RUKKIYA, W/O HUSSAIN, KAINBILI HOUSE, THATTAHIL, PUTHOORMADHAM, PANTHEERANKAVU.

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BY ADV. SRI.NIRMAL. S

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RESPONDENT(S):

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1. THE SUB DIVISIONAL MAGISTRATE, SUB DIVISIONAL, MAGISTRATE COURT, KOZHIKODE-673 001.

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2. SUB INSPECTOR OF POLICE, NALLALAM POLICE STATION, NALLALAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031.

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3. MUNEER.M, S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANA-673 001

.....2/-

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Crl.MC.No. 1551 of 2016

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4. MUSTHAFA. E.M,

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S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANNA-673 001.

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S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANNA-673 001.

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6. BUSHARA,

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W/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM, PERUMANNA-673 001.

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7. KOYA.P.M,

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S/O MUHAMMED S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM. PERUMANNA-673 001.

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8. KADEEJA,

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W/O ABDU, S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM. PERUMANNA-673 001.

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9. RASEENA,

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W/O MUSHAFA, S/O ABDU, EDAVANAM MEETHAL, PARAKKOTT THAZHAM. PERUMANNA-673 001.

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R1& 2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI R5 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN SMT.UMMUL FIDA

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1551 of 2016

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APPENDIX

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PETITIONER(S)' ANNEXURES

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ANNEXURE A1:	TRUE COPY OF THE NALLALAM POLICE	FIR NO. 0950 DT. 5/8/15 OF STATION
ANNEXURE A2:	TRUE COPY OF THE IN M.C. 76/15 OF	ORDER DT. 14/10/15 IN CMP 6241/15 THE JFCM-V, KOZHIKODE
ANNEXURE A3:	TRUE COPY OF THE NALLALAM POLICE	FIR NO. 1098/15 DT. 1/9/15 OF STATION
ANNEXURE A4:	TRUE COPY OF THE NALLALAM POLICE	FIR NO 1109/15 DT. 4/9/15 OF STATION
ANNEXURE A5:	TRUE COPY OF THE BY THE MEDICAL C	REFERENCE CARD DT. 3/10/15 ISSUED OLLEGE HOSPITAL, KOZHIKODE
ANNEXURE A6:	TRUE COPY OF THE PETITIONER	ULTRA SOUND SCAN REPORT OF THE 1ST
ANNEXURE A7:	TRUE COPY OF THE 3RD PETITIONER	ULTRA SOUND SCAN REPORT OF THE
ANNEXURE A8:	TRUE COPY OF THE NALLALAM POLICE	FIR NO. 1278/15 DT. 1/10/15 OF STATION
ANNEXURE A9:	TRUE COPY OF THE 384/15 OF SUB DI	ORDER DT. 21/10/15 IN CMPMC NO. VISIONAL MAGISTRATE, KOZHIKODE

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RESPONDENT(S)' ANNEXURES

NIL.

/ TRUE COPY /

P.S. TO JUDGE

RAJA VIJAYARAGHAVAN.V, J

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----------------------------------------

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Crl.M.C. No.1551 of 2016

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-----------------------------------------

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Dated this the 10^th day of August, 2016

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O R D E R

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1.The proceeding initiated by the Sub Divisional Magistrate,

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Kozhikode under Section 107 of the Code of Criminal Procedure against the petitioners herein is under challenge in this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity).

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2.As per the impugned order, the petitioners have been directed to appear before the said officer in person at 11 a.m. on 13.1.2016 and to show cause why they should not be required to enter into a bond of Rs.20,000/- each with two sureties for the like sum for keeping peace for a term of one year.

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3.Heard the learned counsel appearing for the petitioners as

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Crl.M.C.1551/2016

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well as the learned Public Prosecutor.

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4.It is submitted that the 1st petitioner is the wife of the 3rd respondent. The crimes based on which the impugned order has been issued are all registered at the instance of the 1st petitioner against the 3rd respondent and his family

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members. Annexure-A1 crime is registered at the instance of the 1st petitioner inter alia alleging offence punishable under section 498A of the IPC. Annexure-A2 is the order passed in favour of the petitioner by the learned Magistrate in a proceeding initiated under the Protection of Women from Domestic Violence Act, 2005. Annexure-A3 is the crime registered at the instance of the 5th petitioner under section 294(b), 506(1) of the IPC against the 4th respondent. Annexure-A4 is the crime registered at the instance of the 1st petitioner against the 4th respondent alleging offence punishable inter alia under section 354 of the IPC. Annexure-A8 is another crime registered at the

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Crl.M.C.1551/2016

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instance of the 3rd petitioner against the 4th respondent and

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others inter alia under section 308 of the IPC. According to the learned counsel, the 1st petitioner and her family members have been brutally assaulted by the 4th respondent and his family members and it is unjust for the Sub Divisional Magistrate to call upon the petitioners to execute a bond to keep peace. Though it is stated in the printed order that the Sub Inspector of the Nallalam Police Station has submitted a report and the fact that the petitioners are in the habit of involving themselves in criminal offences, the same is falsified by the materials on record. It is urged that the materials before the learned Magistrate was thoroughly inadequate to arrive at the requisite satisfaction. Finally it is contended that the preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance was placed on the Full Bench decision of this Court in Moidu v.

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Crl.M.C.1551/2016

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State of Kerala [1982 KHC 139 : 1982 KLT 578] and the

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decision of the learned Single Judges in Peethambaran v. State of Kerala [1980 KHC 239 :1980 KLT 876 : ILR 1980

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(2) Ker. 589], Santhosh M.V. and Others V State of

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Kerala [2014 (2) KLD 519] and Bejoy K.V. V State of

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Kerala [2015 (2) KLD 889].

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5.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police to the effect that the petitioners were continuously involving themselves in criminal offences causing breach of peace and public tranquility in the area that preventive action was initiated.

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6.I have perused the materials on record as well.

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7.Under Section 107 of Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace, he may require such person to show cause why he should not be ordered to execute a bond with or without

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Crl.M.C.1551/2016

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sureties, for keeping the peace for a period not exceeding one year. This has to be done in the manner provided in Section 111. That Section requires a Magistrate to make an order in writing, setting forth the substance of the information received. The sine qua non for the institution of a proceeding under the Section is that the Magistrate shall be of the opinion that there is sufficient ground for proceeding. The Magistrate, has, under the law, to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility before taking action. For that purpose, the Magistrate before issuing notice under 111 must record the grounds, which, in his opinion as sufficient for proceeding further.

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8.On perusing Annexure-A9 order, it is evident that the Sub Divisional Magistrate was not justified in calling upon the petitioners to keep peace. Most of the crimes were registered at the instance of the 1st petitioner pursuant to

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acts of matrimonial cruelty. Only certain crime numbers have been mentioned in Annexure-A9 order. Annexure-A9 order does not state in what way or with reference to what matter the petitioners was likely to commit a breach of peace. There was no tangible evidence before the learned Magistrate that some definite Act is contemplated, which Act, if committed, is likely to cause breach of peace. Annexure-A9 order does not fulfill the requirement under Section 111 and reveals total non application of mind.

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9.The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not punishment of crimes. It is not intended to punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion a breach of the peace. The section is designed to enable the Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public

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tranquility. Wide powers have been conferred on the magistrates specified in this section and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law.

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10.As such, in view of such blatant abuse of the powers under Sections 107 and 111 Cr. P.C., it is only just and proper, to secure the interest of justice and to prevent abuse of powers of the Court, that Annexure-A9 order be quashed. The petition is allowed. All further proceedings against the petitioners in M.C.No.384 of 2015 of the Sub Divisional Magistrate Court, Kozhikode will stand quashed.

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Sd/RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

Femina v. the Sub Divisional Magistrate

Case brief

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Femina v. the Sub Divisional Magistrate

Case brief

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