Allowed

Shiju K.V v. State of Kerala

Kerala HC10 Jun 2019Crl.MC/979/2018

Case brief

AI extract

What is this about?

The High Court quashed a preliminary order under Sections 107 and 111 Cr.P.C. issued by a Sub Divisional Magistrate. The Court held the order was passed without evidence of likely breach of peace, violating statutory mandates and requiring sufficient reasoning.

What did the court decide?

The preliminary order dated 17.01.2018 passed by the Sub Divisional Magistrate in M.C. No. 259 of 2017 stood quashed.

Shiju K.V Vs State of Kerala — Writ and Judicial Review | 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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MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941

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Crl.MC.No. 979 of 2018

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AGAINST THE ORDER DATED 17.01.2018 IN MC NO.259/2017 OF THE SUB DIVISIONAL MAGISTRATE COURT, THIRUVANANTHAPURAM

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CRIME NO. 552/2017 OF Neyyattinkara Police Station, Thiruvananthapuram

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PETITIONER/COUNTER PETITIONER:

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SHIJU K.V., AGED 40 YEARS, S/O.KARUNAKARAN, MULAYANTHANNI VADAKKARIKU PUTHENVEEDU, NELLIMOODU P.O., NEYYATINKARA, THIRUVANANTHAPURAM.

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BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY

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RESPONDENT/STATE/PETITIONER:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.1247/2017 OF KANJIRAMKULAM POLICE STATION, THIRUVANANTHAPURAM)

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BY SR. PUBLIC PROSECUTOR SRI. M. S. BREEZ

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRL.MC:979/2018

ORDER

In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner challenges Annexure-II preliminary order passed by the Sub Divisional Magistrate, Thiruvananthapuram. By the said order, the petitioner has been called upon to appear before the court at 11 a.m. on 14.02.2018 and to show cause why he should not be ordered under Section 107 of the Cr.P.C. r/w. Section 111 of the Code and to execute a bond for Rs.50,000/(Rupees Fifty thousand only) with two solvent sureties of Rs.25,000/- each to keep peace for a term of one year.

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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 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 the impugned order, submits the learned counsel. It

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CRL.MC:979/2018

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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 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 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 Senior Public Prosecutor and I have

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gone through the materials on record.

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On a perusal of Annexure-II order, it is evident that the

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Sub Divisional Magistrate has disregarded the statutory mandate and has invoked powers vested on him in a callous manner. The

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mere fact that the petitioner herein is involved in criminal acts could not have been taken as the basis to issue a preventive order

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CRL.MC:979/2018

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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 the parties to show cause why he should not enter into recognizances, and on his failure, to make an order under the 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 proceedings against persons under Section 107 based on vague hunches or general statements. Annexure-II order does not state in what way or with reference to what manner the petitioner 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-II 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

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CRL.MC:979/2018

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powers of the Court that Annexure-II order be quashed.

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In the result, this petition is allowed. All further

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proceedings against the petitioner in M.C.No.259 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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KRJ

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//TRUE COPY// P.A. TO JUDGE

CRL.MC:979/2018

APPENDIX

PETITIONER’S ANNEXURES:-

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ANNEXURE-I:- TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1247/2017 BY KANJIRAMKULAM POLICE.

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AMNNEXURE-II:- CERTIFIED COPY OF THE PRELIMINARY ORDER DATED 17.01.2018 PASSED BY THE SUB DIVISIONAL MAGISTRATE IN MC NO.259/2017.

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RESPONDENTS’ ANNEXURES:-NIL

Shiju K.V v. State of Kerala

Case brief

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Shiju K.V v. State of Kerala

Case brief

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