Allowed

Ismail Sahib v. State of Kerala

Kerala HC18 Aug 2023Crl.MC/735/2022

Case brief

AI extract

What is this about?

The High Court of Kerala, using its powers under Section 482 Cr.P.C., quashed a summons issued by the SDM under Section 107 Cr.P.C. for failing to comply with mandatory procedural requirements of Section 111 Cr.P.C., while directing the authorities to proceed afresh in compliance with the law.

What did the court decide?

The impugned summons (Annexure-1) dated 22.10.2021 stands quashed and set aside.

Ismail Sahib Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2023)

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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 A. BADHARUDEEN

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FRIDAY, THE 18^TH DAY OF AUGUST 2023 / 27TH SRAVANA, 1945

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CRL.MC NO. 735 OF 2022

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M.C.NO.90/2021 OF THE COURT OF THE SUB DIVISIONAL MAGISTRATE,

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ADOOR

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PETITIONER/COUNTER PETITIONER:

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ISMAIL SAHIB S/O MIAN KHAN, KAITHAMOOTTIL VEEDU, NANNUVAKKADU, NEAR COLLECTORATE, KOZHENCHERRY TALUK PATHANAMTHITTA, PIN - 689641

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BY ADVS. M.T.SURESHKUMAR SMITHA PHILIPOSE, DARSAN SOMANATH MANJUSHA K SREELAKSHMI SABU

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RESPONDENT/STATE:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

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SR PP - RENJITH GEORGE

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No. 735 of 2022

“C.R.”

ORDER

Dated this the 18^th day of August, 2023

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This petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience) to quash Annexure-1 summons dated 22.10.2021 issued by the Sub Divisional Magistrate, Adoor in M.C. No.90 of 2021.

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Heard the learned counsel for the petitioner and the learned Public Prosecutor appearing for the State.

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The learned counsel for the petitioner submitted that Annexure-1 summons issued in form No.1 as per Section 61 of Cr.P.C. is not in conformity with the procedure laid down in Section 111 of Cr.P.C. and Section 111 of Cr.P.C. provides the manner in which order under Sections 107, 108, 109 or 110 of Cr.P.C. to be made.

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According to the learned counsel for the petitioner, on perusal of Annexure-1, non compliance of Section 111 Cr.P.C. is apparent and therefore the order is

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Crl.M.C No. 735 of 2022

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perse illegal. Therefore, the quashment as such is liable to be allowed.

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The learned Public Prosecutor also could not

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justify the order because the order does not depict the procedure provided under Section 111 of Cr.P.C.

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The point arises for determination is; how an order to be made under Sections 107, 108, 109 and 110 of Cr.P.C.

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7. Section 111 of Cr.P.C. provides as under:

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“ 111. Order to be made

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When a Magistrate acting under section 107, section 108, section 109, or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required.”

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On perusal of Annexure-1 order, it has been stated that the attendance of the petitioner is necessary to

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Crl.M.C No. 735 of 2022

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answer a charge under Section 107 of Cr.P.C. and thereby he was directed to appear in person on 26.11.2021. In this context, it is discernible that the order impugned doesn't contain the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required. Therefore, the non-compliance of Section 111 of Cr.P.C. is vivid and the order which doesn't contain the above details cannot sustain in the eye of law.

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Thus, it is the mandate that whenever a

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Magistrate intents to proceed acting under section 107, section 108, section 109, or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required and without furnishing such details, the order will be non-est. Therefore, the order is liable to be set aside. Accordingly, Annexure-1 order stands quashed and this

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Crl.M.C No. 735 of 2022

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petition stands allowed.

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However, it is specifically made clear that

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quashment of Annexure-1 shall not be a bar for the Sub Divisional Magistrate to issue appropriate order and to proceed under Section 107 of Cr.P.C. following the mode provided under Section 111 of Cr.P.C and as described herein above.

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Sd/-

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A. BADHARUDEEN JUDGE

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Crl.M.C No. 735 of 2022

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APPENDIX OF CRL.MC 735/2022

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PETITIONER ANNEXURES : ANNEXURE 1 A TRUE COPY OF THE SUMMONS/NOTICE DATED 22-10-2021 ISSUED UNDER S 107 CR.PC BY THE SDM, ADOOR

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RESPONDENT'S ANNEXURES : NIL

Ismail Sahib v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ismail Sahib v. State of Kerala

Case brief

What is this about?

What did the court decide?

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