IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.MC.No. 2355 of 2010(B) -------------------------------------- [MC.NO.37/2010 OF SUB DIVISIONAL MAGISTRATE, MANANTHAVADY] .................... PETITIONERS/COUNTER PETITIONERS 1 TO 3: ------------------------------------------------------------------- 1. ABDUL SALEEM, S/O.KHADER, PALLATH HOUSE, GREEN LAND NAGAR, KALPETTA, WAYANAD DISTRICT. 2. NASAR, THONDIYIL HOUSE, KALPETTA, WAYANAD DISTRICT. 3. JASHAD, KANAPPARAMBIL HOUSE, KALPETTA, WAYANAD DISTRICT. BY ADV. SRI.KRISHNA PRASAD. S. RESPONDENTS/COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB DIVISIONAL MAGISTRATE, MANANTHAVADY, WAYANAD DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2355 of 2010 -------------------------- ORDER Sub Divisional Magistrate, Mananthavady initiated proceedings under Section 107 of Code of Criminal Procedure in M.C.No.37/2010 against petitioners based on Annexure-A2 FIR in Crime No. 129/2010, registered for the offences under Sections 353 and 506(i) read with Section 34 of Indian Penal Code. Annexure-A1 preliminary order was passed under Section 111 of Code of Criminal Procedure directing petitioners to appear and show cause why they should not be ordered to execute a bond for Rupees One lakh two sureties, who shall be Gazetted Officers, for a period of one year to maintain peace and public tranquility in the locality. This petition is filed under Section 482 of Code of Criminal procedure to quash the proceedings in M.C.No37/2010, including Annexure-A1 order passed under Section 111 of Code of Criminal Procedure. CRMC 2355/10 2 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Section 107 of Code of Criminal Procedure enables an Executive Magistrate, on receipt of information that any person is likely to commit a breach of peace or disturb public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb public tranquility and is of the opinion that there is sufficient ground for proceeding, to 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. 4. Section 111 of Code of Criminal Procedure provides that when a Magistrate, acting under Section 107 of Code of Criminal Procedure, deems it necessary to require any person to show cause under that section, he shall make an order in writing, setting forth the substance of the information CRMC 2355/10 3 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. Annexure-A1 order passed under Section 111 of Code of Criminal Procedure shows that reason for initiating proceedings against petitioners is the incident which occurred on 17.5.2010, culminated in registration of Crime No.129/2010 of Kumbalakkad Police Station. Annexure-A2 FIR shows that crime was registered based on a complaint received from the Village Officer, Panamaram to the effect that as instructed by the Sub Divisional Magistrate, the Village Officer reached near Land Mortgage Bank, Panamaram, on the side of Panamaram-Kalpetta Road, on getting information that using JCB, illegal mining is being carried out and when the Village Officer tried to take custody of the JCB, petitioners caused obstruction and threatened him and therefore, his official duties were delayed for CRMC 2355/10 4 a period of two hours. Annexure-A2 final report and Annexure-A1 order passed under Section 111 of Code of Criminal Procedure do not disclose that there was any previous incident prior to that date or that any of the petitioners committed breach of peace or disturbed public tranquility earlier. Even in Annexure-A2 FIR or in the report submitted by the Village Officer, there is no allegation that there was any breach of peace or breach of public tranquility committed by the petitioners. Annexure- A1 order does not show that petitioners would cause any breach of peace or disturb public tranquility. 6. True, petitioners are not entitled to do any illegal act or to assist illegal mining by providing a JCB. But, if petitioners have committed any such unlawful act, they can be legally prosecuted and proceeded against. Proceedings under Section 107 of Code of Criminal Procedure cannot be initiated unless the conditions provided in Section 107 are satisfied. Annexure-A1 order with Annexure- CRMC 2355/10 5 A2 FIR establish that there was no occasion for initiating proceedings under Section 107 of Code of Criminal Procedure. In such circumstances, the proceedings can only be quashed as it is an abuse of process of the court. Petition is allowed. Proceedings initiated in M.C.No.37/2010 by Sub Divisional Magistrate, Mananthavady, including Annexure-A1 order passed under Section 111 of Code of Criminal Procedure, is quashed. 22nd September, 2010 (M.Sasidharan Nambiar, Judge) tkv