Allowed

Vijayakumar v. the State of Kerala

Kerala HC4 Jun 2019Crl.MC/1501/2018

Case brief

AI extract

What is this about?

The High Court allowed a Criminal Miscellaneos Petition challenging an order passed under Sections 107 and 111 Cr.P.C. The Court quashed the order, holding that the Sub Divisional Magistrate failed to provide sufficient notice of reasons and acted on vague hunches without tangible evidence of a probable breach of peace, violating statutory mandates.

What did the court decide?

The order passed by the Sub Divisional Magistrate under Section 111 Cr.P.C. calling the petitioner to enter a bond is quashed, and all further proceedings against the petitioner in that matter are sta

Vijayakumar Vs the State of Kerala — Criminal Trial and Appeal | Kerala HC (2019)

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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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TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941

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Crl.MC.No. 1501 of 2018

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MC NO.223/2017 OF THE SUB DIVISIONAL MAGISTRATE COURT, TRIVANDRUM

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CRIME NO. 462/2017 OF KAZHAKKUTTOM POLICE STATION, THIRUVANANTHAPURAM

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PETITIONER/COUNTER PETITIONER:

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VIJAYAKUMAR, S/O. CHANDRASENAN, AGED 51 YEARS, ANJU BHAVAN, CHENGOTTUKONAM, THUNDATH P.O., THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENTS/STATE & COMPLAINANT:

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1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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2 THE SUB INSPECTOR OF POLICE KAZHAKKOOTTAM POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN-695582.

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BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION

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SRI M S BREEZ SR PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1501 of 2018

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ORDER

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In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner challenges Annexure-C order issued by the Sub Divisional Magistrate, Thiruvananthapuram. By the said notice, the petitioner has been called upon to appear before the said officer in person at 11.00 a.m. on 31.01.2018 and to show cause why he should not be required to enter into a bond of Rs.50,000/- with two solvent sureties of Rs.25,000/- each for keeping peace for a term of one year.

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

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The learned counsel appearing for the petitioner would assail the order on various grounds. It is submitted that the liberty of a person should only be curtailed according to its own procedure and not on the whim of the Magistrate concerned. The order passed by the learned Magistrate is the foundation of the jurisdiction and it had to give sufficient notice as to what incited the learned Magistrate to take action under Section 111 of the Cr.P.C. The order cannot be sustained as the substance of accusation has not been stated in Annexure-C order, submits the learned counsel. It is urged that the materials before the learned Magistrate were thoroughly inadequate to arrive at the requisite satisfaction. There was no indication of the likelihood of

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Crl.MC.No. 1501 of 2018

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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 is placed on Madhu Limaye v. Sub Divisional Magistrate, Monghyr [AIR 1971 SC 2486], the decision of this Court in Moidu v. State of Kerala [1982 KLT 578] and the decision of the learned Single Judges in Peethambaran v. State of Kerala [1980 KLT 876], 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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Heard the learned Public Prosecutor as well and I have perused the materials on record.

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On perusing Annexure-C 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 herein is involved in criminal acts could not have been taken as the basis to issue a preventive order against him. The reasons which persuaded the Sub Divisional Magistrate to initiate proceeding are 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

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Crl.MC.No. 1501 of 2018

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section. (See Moidu v. State of Kerala [1982 KLT 578]).

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It is also not open to the learned Magistrate to draw up

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proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-C order does not state in what way or with reference to what manner 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-C order does not fulfill the requirement under Section 111 and reveals total non application of mind.

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As such, in view of such blatant abuse of the powers under Sections 107 and 111 of the 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-C order be quashed.

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In the result, this petition is allowed. All further proceedings against the petitioner in M.C.No.223 of 2017 on the file of the Sub Divisional Magistrate Court, Thiruvananthapuram, will stand quashed.

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sd/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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IAP

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Crl.MC.No. 1501 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE F.I.R IN CRIME NO. 462/2017 OF THE KAZHAKKOOTTAM POLICE STATION DATED, 20.3.2017.

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ANNEXURE B TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE D.G.P. & OTHERS DT. 28.12.2017.

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ANNEXURE C TRUE COPY OF THE PRELIMINARY ORDER ISSUED BY THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM UNDER SECTION 111 CR.P.C. DATED 9.1.2018 IN M.C.NO. 223/17.

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RESPONDENTS' EXHIBITS:

Vijayakumar v. the State of Kerala

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Vijayakumar v. the State of Kerala

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