Allowed

Radhakrishnan v. State of Kerala

Kerala HC17 Jul 2017Crl.MC/10/2014

Case brief

AI extract

What is this about?

High Court of Kerala quashed a preventive bond order under Section 107 CrPC issued by Sub Divisional Magistrate. The Court held proceedings were time-barred under Section 116 CrPC and the order lacked mandatory findings of likelihood to disturb peace required under Section 111 CrPC.

What did the court decide?

Crl.MC.No.523 of 2013 filed by petitioners before Sub Divisional Magistrate Court, Kollam, stood quashed.

Radhakrishnan Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2017)

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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 17TH DAY OF JULY 2017/26TH ASHADHA, 1939

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Crl.MC.No. 10 of 2014 ()

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AGAINST THE ORDER IN MC 523/2013 of SUB DIVISIONAL MAGISTRATE,KOLLAM DATED 29TH OCTOBER 2013, CRIME NO. 2020/2013 OF CHAVARA POLICE STATION , KOLLAM.

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PETITIONER(S)/PETITIONERS/COUNTER PETITIONERS 2 & 3:

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1. RADHAKRISHNAN, AGED 50YRS, S/O.RAMAKRISHNAN,R.A SADANAM, CHAVARA MURI,CHAVARA, KOLLAM DISTRICT.

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2. ANITHA, AGED 45YRS., W/O.RADHAKRISHNAN,R.A SADANAM, CHAVARA MURI,CHAVARA,KOLLAM DISTRICT

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BY ADV. SRI.P.V.DILEEP.

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RESPONDENT(S)/RESPONDENTS/STATE & PETITIONER:

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

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2. THE S.I OF POLICE, CHAVARA POLICE STATION, CHAVARA,KOLLAM DISTRICT.

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R BY PUBLIC PROSECUTOR SRI. M.R DHANIL.

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THIS CRIMINAL MISCLLANEOUS CASE HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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DXY

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CRL.MC.NO. 10 OF 2014 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE A: A TRUE COPY OF FIR AND REPORT FILED BY 2ND RESPONDENT IN CRIME NO 2020/2013 OF CHAVARA POLICE STATION IN KOLLAM.

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ANNEXURE B: THE TRUE COPIES OF COMPLAINTS FILLED BY THE PETITIONERS.

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ANNEXURE C: A TRUE COPY OF THE DIRECTIONS ISSUED TO 2ND RESPONDENT AND OTHER HIGHER POLICE AUTHORITIES.

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ANNEXURE D: THE TRUE STATEMENT TAKEN BY PETITIONERS ALONG WITH CRIME NO 2020/2013 OF CHAVARA POLICE STATION IN KOLLAM

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ANNEXURE E: A TRUE COPY OF THE COPY OF SUMMONS ISSUED FROM THE SUB DIVISIONAL MAGISTRATES COURT,KOLLAM.

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RESPONDENT(S)' EXHIBITS: NIL

\TRUE COPY\

PA TO JUDGE

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RAJA VIJAYARAGHAVAN V., J

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Crl.M.C. No.10 of 2014

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Dated this the 17^th day of July, 2017

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ORDER

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1.The petitioners are proceeded under Section 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) by the Sub Divisional Magistrate, Kollam on a report filed by the Sub Inspector of Police, Chavara Police Station. By Annexure-E order, the petitioners have been called upon to appear before the said officer in person at 11.00 a.m. on 15.11.2013 and to show cause why they should not be required to enter into a bond of Rs.20,000/- with two 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.It is submitted by the learned counsel that the

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Crl.M.C. 10/2014 2

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proceedings have been initiated on the basis of a solitary crime, and that too, one registered for the purpose by the Sub Inspector, Chavara Police Station under section 107 of the Code. The order is also silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioners are likely to disturb peace and tranquility in a particular locality and in order to prevent the same, it is necessary to take preventive action against them. 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 order falls short of the mandatory requirements under Section 111 of the Code. Reliance is 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

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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.The learned Public prosecutor, on the other hand, submitted that it was on the basis of the fact that the petitioners are likely to indulge in further criminal acts causing breach of peace and public tranquility in the area that preventive action was initiated.

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

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6.Annexure E order is dated 29.10.2013. The petitioners have been called upon to execute bond for keeping peace for one year. The said period has lapsed years back. Section 116 of the Code contemplates that the inquiry under section 116 shall be completed within a period of 6 months from the date of its commencement. I am of the view that the proceedings are liable to be quashed on that ground.

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7.Further ,on perusing Annexure-E order, it is evident that the Sub Divisional Magistrate has disregarded the

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statutory mandate and has invoked powers vested on him in a callous manner. The mere fact that the petitioners are involved in a single crime could not have been taken as the basis to issue a preventive order against the petitioners herein. (see Santhosh M.V. and others v. State of Kerala [2014 (3) KLT 837; Girish P and Others v. State of Kerala [2009 (4) KHC 929]). The reasons which led the Sub Divisional Magistrate to initiate proceeding is not disclosed in the order. 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-E 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-E order does not fulfill the requirement under Section 111 and reveals

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total non application of mind.

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8.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 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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