IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938 [CASE NUMBER] () MC 174/2016 of SUB DIVISIONAL MAGISTRATE, KOZHIKODE CRIME NO. 290/2016 OF NADAPURAM POLICE STATION, KOZHIKODE DISTRICT PETITIONER(S): MUHAMMED, S/O.ABDULLA MUDAVANTHERI P.O., THUNERY VILLAGE, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): 1. THE SUB INSPECTOR OF POLICE NADAPURAM POLICE STATION, KOZHIKODE DISTRICT-673 001. 2. STATE OF KERALA (RESPONDENTS 1&2) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031. R1 & R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: bp [CASE NUMBER] () APPENDIX PETITIONER(S)' EXHIBITS ANNEXURE A1: TRUE COPY OF THE PROCEEDINGS IN M.C.NO.174/2016 ON THE FILE OF SUB DIVISIONAL MAGISTRATE, KOZHIKODE DATED 19.4.2016 ANNEXURE A2: TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER IN M.C. NO.174/2016 DATED 4.5.2015 RESPONDENT(S)' EXHIBITS : NIL. TRUE COPY P.S. TO JUDGE bp [ENTITY], J [CASE NUMBER] Dated this the 9th day of August, 2016 O R D E R
1.The proceeding initiated by the Sub Divisional Magistrate, Kozhikode under [SECTION] of the [ACT] against the petitioner herein is under challenge in this petition filed under [SECTION] of the [ACT] (hereinafter referred to as 'the Code' for brevity).
2.As per the impugned order, the petitioner has been directed to appear before the said officer in person at 3 p.m. on 4.5.2016 and to show cause why he should not be required to enter into a bond of Rs.20,000/- each and also to furnish security by executing a bond of two sureties for the like sum for keeping peace for a term of one year.
3.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.
4.The learned counsel would assail the order on various grounds. It is pointed out that the impugned order is incomplete and that by itself would reveal total non application of mind . Though it is stated in the printed order that the Sub Inspector of the Nadapuram Police Station has submitted a report and the fact that the petitioner has involved himself in [CASE NUMBER] of the Nadapuram Police station is made mention of, the order is deafeningly silent as to the other details of the crime. The order is also silent as regards the relevant factors which influenced the mind of the Magistrate to form an opinion that the petitioner is 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 him. 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 preliminary order under [SECTION] did not meet the requirement of [SECTION] of the Code. Reliance was placed on the Full Bench decision of this Court in [PRECEDENT] and the decision of the learned Single Judges in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
5.The learned Public prosecutor, on the other hand, submitted that it was based on the report made by the Sub Inspector of Police to the effect that the petitioner was continuously involving himself in criminal offences causing breach of peace and public tranquility in the area that preventive action was initiated.
6.I have perused the materials on record as well .
7.Under [SECTION] of Code, whenever a Magistrate is informed that any person is likely to commit a breach of the peace, he may require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for a period not exceeding one year. This has to be done in the manner provided in [SECTION]. That Section requires a Magistrate to make an order in writing, setting forth the substance of the information received. The sine qua non for the institution of a proceeding under the Section is that the Magistrate shall be of the opinion that there is sufficient ground for proceeding. The Magistrate, has, under the law, to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility before taking action. For that purpose, the Magistrate before issuing notice [SECTION] must record the grounds, which, in his opinion as sufficient for proceeding further.
8.In [PRECEDENT] the Apex Court , in para 36 of the judgment, had cautioned the Executive Magistrate exercising powers under [SECTION] in the following manner:-
"We have seen the provisions of [SECTION]. That section says that action is to be taken in the manner here-in-after provided and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of general public."
It was further observed in Para 37 as under:-
"Since the person to be proceeded against, has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquility at his hands.
Although the section speaks of the substance' of the information, it does not mean the order should not be full. It may not repeat the information but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word substance' means the essence of the most important parts of the information."
9.On perusing Annexure-A1 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 fact that the petitioner was involved in three crimes could not have been taken as the basis to issue a preventive order against the petitioner herein. (see [PRECEDENT]; [PRECEDENT]]). 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 section . (see [PRECEDENT]]. It is also not open to the Magistrate to draw up proceedings against persons under [SECTION] based on vague hunches or general statements. Mere fact that a crime happened to be registered against one person is not sufficient enough reason to invoke the provisions under [SECTION] of the [ACT] . Annexure-A1 order does not state in what way or with reference to what matter 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- A1 order does not fulfill the requirement under [SECTION] and reveals total non application of mind.
10.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 tranquillity. 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.
11.As such , in view of such blatant abuse of the powers under [SECTION] and [SECTION] [ACT], it is only just and proper , to secure the interest of justice and to prevent abuse of powers of the Court, that Annexure-A1 order be quashed.
The petition is allowed. All further proceedings against the petitioner in [CASE NUMBER] of the Sub Divisional Magistrate Court, Kozhikode will stand quashed.
[ENTITY] JUDGE vps