Allowed

Prakash Panavelil v. State of Kerala

Kerala HC28 Nov 2016Crl.MC/6285/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous petition challenging an order by the Sub Divisional Magistrate under Sections 107 and 111 Cr.P.C. The Court quashed the order for lack of application of mind and absence of tangible evidence regarding likelihood of breach of peace.

What did the court decide?

The petition was allowed and the order dated 08-09-2016 in MC 73/2016 before the Sub Divisional Magistrate, Thiruvalla, was quashed.

Prakash Panavelil Vs State of Kerala — 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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MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

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Crl.MC.No. 6285 of 2016 ()

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AGAINST THE ORDER IN MC 73/2016 of SUB DIVISIONAL MAGISTRATE COURT,THIRUVALLA DATED 08-09-2016

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PETITIONERS/RESPONDENTS:

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1. PRAKASH PANAVELIL CHIRAMEL PANAVELI HOUSE, NADUVILEMURI, THALAVADY.

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2. MATHEW K.THOMAS KANDATHIL HOUSE, ARTHISSERRY, KARIKKUZHY, THALAVADY.

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3. THOMAS J. POYYAPPALLY HOUSE, MUTTAR P.O.

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4. BIJU KURIEN KOLLAMALIL, MUTTAR P.O., MUTTAR.

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5. SHAJI VARGHESE SRAMBIKKAL HOUSE, NEERETTUPURAM, THALAVADY. BY ADVS.SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR

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RESPONDENTS/PETITIONER:

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1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. R.D.O./SUB DIVISIONAL MAGISTRATE REVENUE DIVISIONAL OFFICE, THIRUVALLA-689101.

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3. SUB INSPECTOR OF POLICE PULIKEEZHU-689101.

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BY PUBLIC PROSECUTOR SRI.M.R.DHANIL

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2811-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 6285 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES ----------------------ANNEXURE A TRUE COPY OF THE O.S.NO. 424/2016 DATED 05-08-2016. ANNEXURE B TRUE COPY OF THE ORDER IN MC 73/2016 DATED 08-09-2016.

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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.6285 of 2016

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Dated this the 28^th day of November, 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 petitioners challenge Annexure-B order of the Sub Divisional Magistrate, Thiruvalla. By the aforesaid order, the petitioners have been called upon to appear before the said officer in person at 11.00 a.m. on

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9.9.2016 and to show cause why they should not be required to enter into a bond of Rs.10,000/- 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 petitioners 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

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Crl.M.C.6285/2016

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has not been stated in Annexure-B order. The notice reveals total non-application of mind as the only crime made mention of in Annexure-B is the one registered by the police under Section 107 of the Code. Though it is stated in the printed order that the Sub Inspector of the Pulikeezhu Police Station has submitted a report and the fact that the petitioners have involved themselves in a Crime, the order is deafeningly silent as to the other details of the crime. 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

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Crl.M.C.6285/2016

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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 perused the materials on record.

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5.On perusing Annexure-B 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 petitioners are involved in criminal acts could not have been taken as the basis to issue a preventive order against the petitioners 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 recognizances, and on his failure, to make an order under

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Crl.M.C.6285/2016

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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-B order does not state in what way or with reference to what matter the petitioners were 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-B 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-B order be quashed.

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The petition is allowed. All further proceedings against the petitioners now pending as M.C.No.73 of 2016 on the

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Crl.M.C.6285/2016

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file of the Sub Divisional Magistrate Court, Thiruvalla are quashed.

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Sd/RAJA VIJAYARAGHAVAN.V. JUDGE

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