IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 Crl.MC.No. 4040 of 2009(B) -------------------------------------- (M.C. NO. 106/2009/C OF SUBORDINATE DIVISIONAL MAGISTRATE, FORT KOCHI) ................ PETITIONERS/ACCUSED: ------------------------------------ 1. BIJU, AGED 34 YEARS, S/O.GEORGE, CHAKKALAKKAL HOUSE, KARTHEDAM LANE, ERNAKULAM. 2. SINDU, AGED 36 YEARS, W/O.SUNIL, ELATHARA HOUSE, MANJANAKKAD, NJARAKKAL P.O. 3. JALEEL, AGED 45 YEARS, S/O.ALI, CC.6/1462, PUTHUKKATT PARAMBU, MATTANCHERRY. 4. SIDDIQUE, AGED 35 YEARS, S/O.ANTHAMUKKAN, ERAVELIL, FORTKOCHI. 5. BENNY, AGED 35 YEARS, S/O.JOSEPH, KANDATHOIL PARAMBIL, EDAKOCHI. BY ADV. MR.T.N.SURESH. RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE S.I. OF POLICE, FORTKOCHI. R1 & R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/02/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4040 of 2009 -------------------------- ORDER By Annexure-A2 order dated 7.7.2009, Sub Divisional Magistrate, Fort Kochi initiated proceedings under Section 107 of Code of Criminal Procedure and passed a preliminary order under Section 111, directing petitioners to appear before the court on 18.8.2009 and to show cause why they should not be required to execute a bond for Rs.10,000/- each and also to furnish security by a bond of two sureties for the like sum to keep peace for a term of three years. Annexure-A2 order shows that proceedings were initiated based on Annexure- A1 report submitted by the Sub Inspector of Police stating that petitioners are committing acts leading to breach of peace, which are likely to endanger public tranquility and therefore, proceedings are to be initiated under Section 107 of Code of Criminal Procedure. The order only shows CRMC 4040/09 2 that Sub Inspector of Police has reported that cases were registered against the petitioners in various police stations and furnished two crime numbers, Crime No.605/2009 of Fort Kochi Police Station and Crime No.898/2009 of Narakkal Police Station. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 order and the proceedings initiated in M.C.No. 106/2009 under Section 107 of Code of Criminal Procedure contending that the order is illegal and is violative of the mandatory procedure provided under the Code. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Section 107 of Code of Criminal Procedure provides that when an Executive Magistrate receives information that any person is likely to commit breach of peace or disturb public tranquility or to do any wrongful act that may probably occasion CRMC 4040/09 3 breach of peace or disturb public tranquility and the Magistrate is of the opinion that there is sufficient ground for proceeding, he may, in the manner provided, require such person 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. Therefore, the period of the bond, which could be directed to be executed under Section 107 of Code of Criminal Procedure, cannot exceed one year. Under Annexure-A2 order, the period is three years, which itself is illegal. 4. Section 111 of Code of Criminal Procedure provides the procedure to be followed by the Sub Divisional Magistrate while initiating proceedings under Section 107. Section 111 provides that when a Magistrate, acting under Section 107, 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 CRMC 4040/09 4 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. 5. It is mandatory, under Section 111 of Code of Criminal Procedure, for the Magistrate to set forth the substance of the information received by him, based on which he decided to initiate proceedings under Section 107 of Code of Criminal Procedure. It is not an empty formality. It is to enable the person, against whom proceedings is initiated and who is directed to appear and show cause why bond shall not be executed, to appear and show before the Magistrate that the substance of the information received by him is either not correct or insufficient to invoke the proceedings under Section 107 of Code of Criminal Procedure. If the substance of the information is not set forth in the order passed under Section 111 of Code of Criminal Procedure, proceedings initiated is, CRMC 4040/09 5 definitely, vitiated. 6. Annexure-A2 order does not show the substance of the information received by the Sub Divisional Magistrate, based on which he expressed satisfaction and initiated proceedings under Section 107 of Code of Criminal Procedure. The order only shows that petitioners are involved in Crime No.605/2009 of Fort Kochi Police Station and Crime No.898/2009 of Narakkal Police Station. Even the substance of the allegation against the petitioners or the offences or the dates of its commission were not disclosed in Annexure-A2 order. Annexure-A1 report shows that Crime No.605/2009of Fort Kochi Police station was registered for the offences under Sections 447, 143, 146, 147 read with Section 149 of Indian Penal Code on the allegation that on 13.5.2009 at about 6.45 a.m., about 150 persons formed themselves into an unlawful assembly and trespassed into the land earmarked for dumping yard, park and also for the CRMC 4040/09 6 police and put up temporary huts. So also, Crime No.898/2009 of Narakkal Police Station was registered under Section 143, 147 and 447 read with Section 149 of Indian Penal Code on the allegation that on 28.5.2009, under the leadership of the petitioners, the accused trespassed into the public place and put up temporary huts. If, based on those actions, proceedings under Section 107 is to be initiated, it should have been initiated against all those persons. As the very substance of the information received by the Sub Divisional Magistrate is not set forth in Annexure-A2 order, the proceedings initiated is vitiated and hence, can only be quashed. Petition is allowed. Annexure-A2 order and the proceedings in M.C.No.106/2009 of Sub Divisional Magistrate, Fort Kochi are quashed. 19th February, 2010 (M.Sasidharan Nambiar, Judge) tkv