IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 Crl.MC.No. 1212 of 2011() ------------------------------------- MC.39/2011 OF SUB DIVISIONAL MAGISTRATE COURT, ALAPPUZHA. .................... PETITIONER/CR. PETITIONER ------------------------------------------- SUDHEESH, AGED 20 YEARS, S/O. SANTHOSH, THOTTAHUVELI, CMC WARD NO.8, CHERTHALA. BY ADV. SRI.B.PRAMOD RESPONDENTS/PETITIONER & STATE ------------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, CHERTHALA POLICE STATION, 688 524. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.V. MANU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 1212 of 2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-1: COPY OF THE ORDER DATED 26/03/2011 ISSUED TO THE PETITIONER. RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1212 of 2011 -------------------------------------- Dated this the 10th day of June, 2011. ORDER Annexure-1, order dated March 26, 2011 passed by the Sub Divisional Magistrate, Alappuzha is under challenge. The Sub Divisional Magistrate issued that order purporting to be under Section 107 of the Code of Criminal Procedure (for short, “the Code”) in M.C.No.39 of 2011 directing petitioner to appear before the Sub Divisional Magistrate on April 7, 2011 to enter into a bond with sureties for keeping peace for a period of one year as mentioned in the order. Learned counsel submitted that the said order is bad in law since it does not comply the procedure prescribed in the Code and also since the materials on which the Sub Divisional Magistrate is said to have formed satisfaction are not disclosed in Annexure-1, order. Learned counsel has placed reliance on the decisions in Henry Vijayakumar v. State of Kerala (2009 (4) KLT 495) and Girish v. State of Kerala (2009(4) KLT 102 (Case No.99). Learned Public Prosecutor contends that Annexure-1, order could be treated as a notice under Section 107 of the Code. 2. Section 107 of the Code deals with the security for keeping peace in cases other than covered by Section 106 of the Code and states that in the circumstances stated therein, the Executive Magistrate may in the manner provided in the Code require the person concerned to show cause why he should Crl.MC No.1212/2011 2 not be ordered to execute a bond with or without surety for keeping peace for such period not exceeding one year as the Magistrate thinks fit. Section 111 of the Code deals with the manner in which the order requiring the person concerned to execute bond is to be issued. The said provision says that when a Magistrate acting under Section 107, 108 or 110 of the Code 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 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. Section 116 of the Code states that when an order under Section 111 of the Code has been read or explained under Section 112 to a person in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of a summons or warrant issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been and to take such further evidence as may appear necessary. Sub-section (3) of Section 116 of the Code states that after commencement and before completion of the inquiry under Sub-section (1) the Magistrate if he considers that immediate measures are necessary for prevention of a breach of peace or disturbance of public tranquility or commission of any offence or for the public safety, may for reasons to be recorded in writing direct the person concerned to execute bond. 3. Going by Annexure-1, none of the above provisions are seen complied. Annexure-1 cannot be taken as an order under the Code since it does not contain the material on which satisfaction is entered by the Sub Crl.MC No.1212/2011 3 Divisional Magistrate. The Sub Divisional Magistrate is required to state briefly the nature of information he has received and based on which he has entered satisfaction. That is lacking in Annexure-1, order. Since Annexure-1, order did not comply with the above requirements it cannot stand. Resultantly this Criminal Miscellaneous Case is allowed. In view of what I have stated above Annexure-1, order is set aside. It is made clear that it is open to the Sub Divisional Magistrate to issue fresh orders in compliance with Section 111 of the Code. THOMAS P.JOSEPH, Judge. cks