IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 3420 of 2009()

1. GIRISH P.,S/O.P.MANI,

... Petitioner

2. DEVADASAN K.,S/O.NAYADI,

3. MANI @ RETNAKARAN,S/O.KARAPPAN,

4. HAMZAKOYA,S/O.MUHAMMED,

5. SHAMEER,S/O.KUNHIKOYA,

6. KANAKAM,W/O.SEKHARAN,

7. RENUKA,W/O.GIRISH,SREE MURALI KRISHNA,

8. SUHARABI,W/O.MOIDEENKOYA,

9. SULEKHA,D/O.MUHAMMED KOYA,

10. CHANDRI,W/O.APPUTTY,

11. K.REHMATH,W/O.KUNHIKOYA,

12. T.FATHIMA,D/O.BAVA,

13. P.V.ALIYAMMA,W/O.MOIDEENKOYA,

14. K.K.SUHARABI,W/O.USMAN,

15. SAHITHA,W/O.BASHEER,

Vs

1. STATE OF KERALA,

... Respondent

2. THE SUB DIVISIONAL MAGISTRATE,

For Petitioner :SRI.KALEESWARAM RAJ

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :20/11/2009

O R D E R

M.SASIDHARAN NAMBIAR,J.

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CRL.M.C.No. 3420 OF 2009

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Dated this the 20th day of November,2009 ORDER

Sub Divisional Magistrate, Kozhikode initiated proceedings under section 107 of Code of Criminal Procedure against the petitioners by issuing Annexure I order under section 111 of Code of Criminal Procedure, directing the petitioners to appear on 28.10.2009 and show cause why they shall not execute a bond for Rs.5000/- each with two sureties for the same for keeping peace for a term of one year. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure I order and the proceedings initiated contending that it is only an abuse of process of the court. It is contended that in spite of the mandate under section 111 of Code of Criminal Procedure, the substance of the information based on which proceedings was initiated, is not shown in Annexure I order and there is no necessity to initiate proceedings under section 111 as there was no imminent cause for any breach of peace or public tranquillity by the petitioners. It is contended that the proceedings was  Crl.M.C.3420/2009 2

initiated with oblique motive as petitioners under Snehatheeram Residential Association submitted Annexure II representation before the Chief Minister and the local MLA, the District Collector, Commissioner of City Police and other officials to give a direction not to function TS No.11 toddy shop as it is causing difficulty to the public and is even detrimental to the communal peace in the locality, which is a highly sensitive area and in such circumstance the proceedings is to be quashed.

2. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard.

3. Learned counsel appearing for the petitioners pointed out that the substance of the information based on which satisfaction was recorded is not shown in Annexure I and apart from stating that report of the Sub Inspector of Police, Panniyankara Police Station shows that proceedings is to be initiated under section 107 of Code of Criminal Procedure and that and there are many petitions registered against the petitioners in Panniyankara Police Station and Crime 207/2009 for the offence under sections 143,147,448,427, read with section 149 was registered and Crime 199/09 of Panniyankara Police Station is also recorded the substance of the information is not furnished. It is pointed out that what was the allegation against the petitioners in Crime 207/2009 and 199/2009 and  Crl.M.C.3420/2009 3

whether all the petitioners are the accused therein and whether in Crime 199/2009 of Panniyankara Police Station petitioners are the accused and if so when those alleged incidents occurred are not disclosed and without disclosing those facts, petitioners cannot be expected to defend the case and therefore the proceedings is to be quashed. Reliance was placed on the decision of the Full Bench 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) and in Mukthar v. Sub Inspector of Police 2002(1) KLT S.N.15 (Case No.15)

4. Learned Public Prosecutor submitted that it is based on the report of the Sub Inspector of Police it was found that petitioners are in the habit of making criminal offence in the locality and it is likely to cause breach of peace and public tranquility and the proceedings were initiated.

5. Section 107 of Code of Criminal Procedure enables an executive Magistrate on receiving information that a person is likely to commit breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, to require such person  Crl.M.C.3420/2009 4

to show cause why he should not be ordered to execute a bond with or without sureties for keeping peace for such period not exceeding one year as the Magistrate thinks fit. Section 111 mandates that when a Magistrate acting under section 107, deems it necessary to require any person to show cause, 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, the necessity to setforth "the substance of the information" in the order under section 111 is not an empty formality and is with a purpose. It is to enable the person against whom the order is passed, to appear and show cause before the Magistrate that the allegations are not correct. Unless that information is furnished to the person against whom the order is passed, he cannot defend the allegation as against him.

6. Annexure I order issued by the Sub Divisional Magistrate does not disclose the substance of the information received by the Sub Divisional Magistrate on which he was satisfied that proceedings under section 107 is to be initiated. The fact that petitioners are involved in Crime 207/2009 by itself is not a ground, to initiate proceedings, under section 107. Though past conduct may be  Crl.M.C.3420/2009 5

a guide to initiate proceedings, on that ground alone proceedings cannot be initiated unless as stated by the Full Bench in Moidu's case (supra) there is an imminent breach of peace warranting initiation of proceedings under section 107 of Code of Criminal procedure.

7. When Annexure I order does not disclose the substance of the information which is mandatory, the proceedings initiated can only be quashed. There is substance in the submission of the learned counsel for the petitioners that the proceedings were initiated, as petitioners are agitating against a toddy shop which is causing disturbance to the public. Section 111 of Code of Criminal Procedure is not intended to be used as a weapon to suppress the legitimate public grievance, as cautioned by this court in Peethambaran's case (supra). In such circumstances, it is clear that the proceedings was initiated with oblique motive which is only an abuse of process of the court.

Petition is allowed. M.C.220/2009 on the file of Sub Divisional Magistrate Court, Kozhikode is quashed. M.SASIDHARAN NAMBIAR

JUDGE

tpl/-

 M.SASIDHARAN NAMBIAR, J.

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W.P.(C).NO. /06

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JUDGMENT

SEPTEMBER,2006