Allowed

Mahesh Kumar v. State of Kerala

Kerala HC16 Dec 2016Crl.MC/1865/2016

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Section 482 Cr.P.C., the Kerala HC quashed an order of the Sub Divisional Magistrate under Sections 107 and 111 Cr.P.C. The court held the order passed without materials evidencing probable breach of peace constituted abuse of power and non-application of mind.

What did the court decide?

The order of the Sub Divisional Magistrate calling the petitioner to show cause for depositing bond was quashed, and all further proceedings pending were stayed.

Mahesh Kumar Vs State of Kerala — Criminal Trial and Appeal | 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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FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938

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Crl.MC.No. 1865 of 2016 () ---------------------------

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AGAINST MC NO.294/2015 of SUB.DVL.MAGISTRATE COURT,FORT KOCHI

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PETITIONER/COUNTER PETITIONER:

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MAHESH KUMAR AGED:45 YEARS, S/O PARAMESHWARAN, MAKKAMPALLIL HOUSE, EDAPPALLY NORTH, CHERANALLORE, ERNAKULAM.

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BY ADVS.SRI.K.R.VINOD MS.JENCY SUSAN JOSE

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RESPONDENTS/COMPLAINANT:

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1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031.

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2. THE SUB INSPECTOR OF POLICE CHERANALLORE POLICE STATION, CHERANALLORE, ERNAKULAM-682 023.

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BY PUBLIC PROSECUTOR SRI.AMJAD ALI

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 1612-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1865 of 2016 () ---------------------------

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APPENDIX

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PETITIONER(S)' ANNEXURES

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----------------------ANNEXURE-A1 THE ORIGINAL ORDER SIGNED AND CERTIFIED BY THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI IN MC NO. 294/15 DT. 16/2/2016.

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RESPONDENT(S)' ANNEXURES

NIL

/TRUE COPY/

VPS PS TO JUDGE

RAJA VIJAYARAGHAVAN.V, J

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Crl.M.C. No.1865 of 2016

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Dated this the 16^th day of December, 2016

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O R D E R

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1.In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner challenges Annexure-A1 order of the Sub Divisional Magistrate, Fort Kochi. By Annexure-A1 order, the petitioner has been called upon to appear before the said officer in person at 11.30 a.m. On 29.3.2016 and to show cause why he should not be required to enter into a bond of Rs.20,000/- each with two solvent sureties for the like amount for keeping peace for a term of one year.

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2.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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3.The learned counsel would assail the order on various

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grounds . It is submitted that the substance of accusation has not been stated in Annexure-A1 order. The notice

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Crl.M.C.1865/2016

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reveals total non application of mind as the only crime made mention of in Annexure-A1 is the one registered by

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the police under Section 107 of the Code. It is urged that the materials before the learned Magistrate was thoroughly inadequate to arrive at the requisite satisfaction. There was no indication of the likelihood of any breach of peace or disturbance of public tranquility in the near future. 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. State of Kerala [ 1982 KHC 139 : 1982 KLT 578] and the decision of the learned Single Judges in Peethambaran v. State of Kerala [1980 KHC 239 :1980 KLT 876 : ILR 1980 (2) Ker. 589], Santhosh M.V. and Others V State of Kerala [2014 (2) KLD 519] and Bejoy K.V. V State of Kerala [2015 (2) KLD 889].

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4.Heard the learned Public prosecutor as well and have

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Crl.M.C.1865/2016 3

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perused the materials on record.

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5.On perusing Annexure-A1 order, it is evident that the Sub Divisional Magistrate has disregarded the statutory mandate and has invoked powers vested on him in a callous manner. The mere fact that the petitioner is involved in criminal acts could not have been taken as the basis to issue a preventive order against the petitioner herein. The reasons which persuaded the Sub Divisional Magistrate to initiate proceeding is not disclosed in the order. In the absence of any evidence rendering a breach of peace probable, a Magistrate is not justified in calling upon parties, to show cause why he should not enter into recognisances, and on his failure, to make an order under the section. (see Moidu v. State of Kerala [1982 KLT 578]. It is also not open to the Magistrate to draw up proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-A1 order does not state in what way or with reference to what

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Crl.M.C.1865/2016 4

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matter the petitioner was likely to commit a breach or 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-A1 order does not fulfill the requirement under Section 111 and reveals total non application of mind.

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6.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-A1 order be quashed.

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The petition is allowed. All further proceedings against the petitioner now pending as M.C.No.294 of 2015 on the file of the Sub Divisional Magistrate Court, Fort Kochi, will stand quashed.

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SD/-

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RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

Mahesh Kumar v. State of Kerala

Case brief

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Mahesh Kumar v. State of Kerala

Case brief

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